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REGULATION (EC) No 561/2006 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
of 15 March 2006
on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 and repealing Council Regulation (EEC) No 3820/85
(Text with EEA relevance)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 71 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Economic and Social Committee (2),
After consulting the Committee of the Regions,
Acting in accordance with the procedure laid down in Article 251 of the Treaty (3), in the light of the joint text approved by the Conciliation Committee on 8 December 2005,
Whereas:
(1)
In the field of road transport, Council Regulation (EEC) No 3820/85 of 20 December 1985 on the harmonisation of certain social legislation relating to road transport (4) sought to harmonise the conditions of competition between modes of inland transport, especially with regard to the road transport sector, and to improve working conditions and road safety. Progress in these areas should be safeguarded and extended.
(2)
Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (5) requires Member States to adopt measures which limit the maximum weekly working time of mobile workers.
(3)
Difficulties have been experienced in interpreting, applying, enforcing and monitoring certain provisions of Regulation (EEC) No 3820/85 relating to driving time, break and rest period rules for drivers engaged in national and international road transport within the Community in a uniform manner in all Member States, because of the broad terms in which they are drafted.
(4)
Effective and uniform enforcement of those provisions is desirable if their objectives are to be achieved and the application of the rules is not to be brought into disrepute. Therefore, a clearer and simpler set of rules is needed, which will be more easily understood, interpreted and applied by the road transport industry and the enforcement authorities.
(5)
Measures provided for in this Regulation regarding working conditions should not prejudice the right of the two sides of industry to lay down, by collective bargaining or otherwise, provisions more favourable to workers.
(6)
It is desirable to define clearly the scope of this Regulation by specifying the main categories of vehicle which it covers.
(7)
This Regulation should apply to carriage by road undertaken either exclusively within the Community or between the Community, Switzerland and the countries party to the Agreement on the European Economic Area.
(8)
The European Agreement concerning the Work of Crews of Vehicles engaged in International Road Transport of 1 July 1970 (the AETR), as amended, should continue to apply to the carriage by road of goods and passengers by vehicles registered in any Member State or any country which is a contracting party to the AETR, for the whole of the journey where that journey is between the Community and a third country other than Switzerland and the countries which are contracting parties to the Agreement on the European Economic Area or through such a country. It is essential to modify the AETR as soon as possible, ideally within two years of the entry into force of this Regulation, in order to align its provisions with this Regulation.
(9)
In the case of carriage by road using vehicles registered in a third country which is not a contracting party to the AETR, the provisions of the AETR should apply to that part of the journey effected within the Community or within countries which are contracting parties to the AETR.
(10)
Since the subject matter of the AETR falls within the scope of this Regulation, the power to negotiate and conclude the Agreement lies with the Community.
(11)
If an amendment to the internal Community rules in the field in question necessitates a corresponding amendment to the AETR, Member States should act together to bring about such an amendment to the AETR as soon as possible, in accordance with the procedure laid down therein.
(12)
The list of exemptions should be updated to reflect developments in the road transport sector over the past 19 years.
(13)
Full definitions of all key terms should be given in order to render interpretation easier and ensure that this Regulation is applied in a uniform manner. In addition, efforts should be made to ensure uniform interpretation and application of this Regulation by national supervisory authorities. The definition of ‘week’ provided in this Regulation should not prevent drivers from starting their working week on any day of the week.
(14)
To guarantee effective enforcement, it is essential that the competent authorities, when carrying out roadside checks, and after a transitional period, should be able to ascertain that driving times and rest periods have been properly observed on the day of the check and over the preceding 28 days.
(15)
The basic rules on driving times need to be clarified and simplified to allow effective and uniform enforcement by means of the digital tachograph, as provided for in Council Regulation (EEC) No 3821/85 of 20 December 1985 on recording equipment in road transport (6) and this Regulation. In addition, through a standing committee, Member State enforcement authorities should strive to reach a common understanding of the implementation of this Regulation.
(16)
It has proved possible under the rules of Regulation (EEC) No 3820/85 to schedule daily driving periods and breaks to enable a driver to drive for too long without a full break, leading to reduced road safety and a deterioration in the driver's working conditions. It is therefore appropriate to ensure that split breaks are so ordered as to prevent abuse.
(17)
This Regulation aims to improve social conditions for employees who are covered by it, as well as to improve general road safety. It does so mainly by means of the provisions pertaining to maximum driving times per day, per week and per period of two consecutive weeks, the provision which obliges drivers to take a regular weekly rest period at least once per two consecutive weeks and the provisions which prescribe that under no circumstances should a daily rest period be less than an uninterrupted period of nine hours. Since those provisions guarantee adequate rest, and also taking into account experience with enforcement practices during the past years, a system of compensation for reduced daily rest periods is no longer necessary.
(18)
Many road transport operations within the Community involve transport by ferry or by rail for part of the journey. Clear, appropriate provisions regarding daily rest periods and breaks should therefore be laid down for such operations.
(19)
In view of the increase in the cross-border carriage of goods and passengers, it is desirable, in the interests of road safety and enhanced enforcement, for roadside checks and checks at the premises of undertakings to cover driving times, rest periods and breaks undertaken within other Member States or third countries and to determine whether the relevant rules have been fully and properly observed.
(20)
The liability of transport undertakings should extend at least to transport undertakings that are legal or natural persons, and should not exclude proceedings against natural persons who are perpetrators, or instigators of, or accessories to, infringements of this Regulation.
(21)
It is necessary for drivers working for several transport undertakings to supply each of them with adequate information to enable it to fulfil its responsibilities under this Regulation.
(22)
In order to promote social progress and improve road safety, each Member State should retain the right to adopt certain appropriate measures.
(23)
National derogations should reflect changes in the road transport sector and be restricted to those elements not now subject to competitive pressures.
(24)
The Member States should lay down rules for vehicles used for the carriage of passengers on regular services where the route covered does not exceed 50 km. Those rules should provide adequate protection in terms of permitted driving times and mandatory breaks and rest periods.
(25)
It is desirable, in the interests of effective enforcement, that all regular national and international passenger transport services be checked using a standard recording device.
(26)
The Member States should lay down rules on penalties applicable to infringements of this Regulation and ensure that they are implemented. Those penalties must be effective, proportionate, dissuasive and non-discriminatory. The possibility of immobilising the vehicle where serious infringements are detected should also be included within the common range of measures open to Member States. The provisions contained in this Regulation pertaining to penalties or proceedings should not affect national rules concerning the burden of proof.
(27)
It is desirable in the interests of clear and effective enforcement to ensure uniform provisions on the liability of transport undertakings and drivers for infringements of this Regulation. This liability may result in penal, civil or administrative penalties as may be the case in the Member States.
(28)
Since the objective of this Regulation, namely the establishment of clear, common rules on driving times, breaks and rest periods cannot be sufficiently achieved by the Member States and can therefore, by reason of the need for coordinated action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.
(29)
The measures necessary for the implementation of this Regulation should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (7).
(30)
Since provisions concerning the minimum ages of drivers have been laid down in Directive 2003/59/EC (8) and must be transposed by 2009, only transitional provisions concerning the minimum age of crews are required in this Regulation.
(31)
Regulation (EEC) No 3821/85 should be amended to clarify specific obligations on transport undertakings and drivers as well as to promote legal certainty and to facilitate enforcement of driving time and rest period limits during roadside checks.
(32)
Regulation (EEC) No 3821/85 should also be amended to ensure legal certainty as regards the new dates for the introduction of the digital tachograph and for the availability of driver cards.
(33)
The introduction of recording equipment pursuant to Regulation (EC) No 2135/98, enabling the activities of a driver over a 28-day period to be recorded electronically on his driver card and electronic records of vehicle operations to cover a 365-day period, will in future make for more rapid and comprehensive roadside checks.
(34)
Under Directive 88/599/EEC (9) roadside checks are confined to daily driving time, daily rest periods, and breaks. When digital recording equipment is introduced driver and vehicle data will be stored electronically and data will be able to be evaluated electronically on the spot. This should, over time, enable simple checks to be carried out on regular and reduced daily rest periods and on regular and reduced weekly rest periods and compensatory rest.
(35)
Experience indicates that compliance with the provisions of this Regulation, in particular the specified maximum driving time over a two-week period, cannot be enforced unless proper and effective supervision is brought to bear in roadside checks in relation to the whole of that period.
(36)
The application of the legal provisions regarding digital tachographs should be in line with this Regulation in order to achieve optimal effectiveness in monitoring and enforcing certain social provisions in road transport.
(37)
For reasons of clarity and rationalisation, Regulation (EEC) No 3820/85 should be repealed and replaced by this Regulation,
HAVE ADOPTED THIS REGULATION:
CHAPTER I
INTRODUCTORY PROVISIONS
Article 1
This Regulation lays down rules on driving times, breaks and rest periods for drivers engaged in the carriage of goods and passengers by road in order to harmonise the conditions of competition between modes of inland transport, especially with regard to the road sector, and to improve working conditions and road safety. This Regulation also aims to promote improved monitoring and enforcement practices by Member States and improved working practices in the road transport industry.
Article 2
1. This Regulation shall apply to the carriage by road:
(a)
of goods where the maximum permissible mass of the vehicle, including any trailer, or semi-trailer, exceeds 3,5 tonnes, or
(b)
of passengers by vehicles which are constructed or permanently adapted for carrying more than nine persons including the driver, and are intended for that purpose.
2. This Regulation shall apply, irrespective of the country of registration of the vehicle, to carriage by road undertaken:
(a)
exclusively within the Community; or
(b)
between the Community, Switzerland and the countries party to the Agreement on the European Economic Area.
3. The AETR shall apply, instead of this Regulation, to international road transport operations undertaken in part outside the areas mentioned in paragraph 2, to:
(a)
vehicles registered in the Community or in countries which are contracting parties to the AETR, for the whole journey;
(b)
vehicles registered in a third country which is not a contracting party to the AETR, only for the part of the journey on the territory of the Community or of countries which are contracting parties to the AETR.
The provisions of the AETR should be aligned with those of this Regulation, so that the main provisions in this Regulation apply, through the AETR, to such vehicles for any part of the journey made within the Community.
Article 3
This Regulation shall not apply to carriage by road by:
(a)
vehicles used for the carriage of passengers on regular services where the route covered by the service in question does not exceed 50 kilometres;
(b)
vehicles with a maximum authorised speed not exceeding 40 kilometres per hour;
(c)
vehicles owned or hired without a driver by the armed services, civil defence services, fire services, and forces responsible for maintaining public order when the carriage is undertaken as a consequence of the tasks assigned to these services and is under their control;
(d)
vehicles, including vehicles used in the non-commercial transport of humanitarian aid, used in emergencies or rescue operations;
(e)
specialised vehicles used for medical purposes;
(f)
specialised breakdown vehicles operating within a 100 km radius of their base;
(g)
vehicles undergoing road tests for technical development, repair or maintenance purposes, and new or rebuilt vehicles which have not yet been put into service;
(h)
vehicles or combinations of vehicles with a maximum permissible mass not exceeding 7,5 tonnes used for the non-commercial carriage of goods;
(i)
commercial vehicles, which have a historic status according to the legislation of the Member State in which they are being driven and which are used for the non-commercial carriage of passengers or goods.
Article 4
For the purposes of this Regulation the following definitions shall apply:
(a)
‘carriage by road’ means any journey made entirely or in part on roads open to the public by a vehicle, whether laden or not, used for the carriage of passengers or goods;
(b)
‘vehicle’ means a motor vehicle, tractor, trailer or semi-trailer or a combination of these vehicles, defined as follows:
-
‘motor vehicle’: any self-propelled vehicle travelling on the road, other than a vehicle permanently running on rails, and normally used for carrying passengers or goods,
-
‘tractor’: any self-propelled vehicle travelling on the road, other than a vehicle permanently running on rails, and specially designed to pull, push or move trailers, semi-trailers, implements or machines,
-
‘trailer’: any vehicle designed to be coupled to a motor vehicle or tractor,
-
‘semi-trailer’: a trailer without a front axle coupled in such a way that a substantial part of its weight and of the weight of its load is borne by the tractor or motor vehicle;
(c)
‘driver’ means any person who drives the vehicle even for a short period, or who is carried in a vehicle as part of his duties to be available for driving if necessary;
(d)
‘break’ means any period during which a driver may not carry out any driving or any other work and which is used exclusively for recuperation;
(e)
‘other work’ means all activities which are defined as working time in Article 3(a) of Directive 2002/15/EC except ‘driving’, including any work for the same or another employer, within or outside of the transport sector;
(f)
‘rest’ means any uninterrupted period during which a driver may freely dispose of his time;
(g)
‘daily rest period’ means the daily period during which a driver may freely dispose of his time and covers a ‘regular daily rest period’ and a ‘reduced daily rest period’:
-
‘regular daily rest period’ means any period of rest of at least 11 hours. Alternatively, this regular daily rest period may be taken in two periods, the first of which must be an uninterrupted period of at least 3 hours and the second an uninterrupted period of at least nine hours,
-
‘reduced daily rest period’ means any period of rest of at least nine hours but less than 11 hours;
(h)
‘weekly rest period’ means the weekly period during which a driver may freely dispose of his time and covers a ‘regular weekly rest period’ and a ‘reduced weekly rest period’:
-
‘regular weekly rest period’ means any period of rest of at least 45 hours,
-
‘reduced weekly rest period’ means any period of rest of less than 45 hours, which may, subject to the conditions laid down in Article 8(6), be shortened to a minimum of 24 consecutive hours;
(i)
‘a week’ means the period of time between 00.00 on Monday and 24.00 on Sunday;
(j)
‘driving time’ means the duration of driving activity recorded:
-
automatically or semi-automatically by the recording equipment as defined in Annex I and Annex IB of Regulation (EEC) No 3821/85, or
-
manually as required by Article 16(2) of Regulation (EEC) No 3821/85;
(k)
‘daily driving time’ means the total accumulated driving time between the end of one daily rest period and the beginning of the following daily rest period or between a daily rest period and a weekly rest period;
(l)
‘weekly driving time’ means the total accumulated driving time during a week;
(m)
‘maximum permissible mass’ means the maximum authorised operating mass of a vehicle when fully laden;
(n)
‘regular passenger services’ means national and international services as defined in Article 2 of Council Regulation (EEC) No 684/92 of 16 March 1992 on common rules for the international carriage of passengers by coach and bus (10);
(o)
‘multi-manning’ means the situation where, during each period of driving between any two consecutive daily rest periods, or between a daily rest period and a weekly rest period, there are at least two drivers in the vehicle to do the driving. For the first hour of multi-manning the presence of another driver or drivers is optional but for the remainder of the period it is compulsory;
(p)
‘transport undertaking’ means any natural person, any legal person, any association or group of persons without legal personality, whether profit-making or not, or any official body, whether having its own legal personality or being dependent upon an authority having such a personality, which engages in carriage by road, whether for hire or reward or for own account;
(q)
‘driving period’ means the accumulated driving time from when a driver commences driving following a rest period or a break until he takes a rest period or a break. The driving period may be continuous or broken.
CHAPTER II
CREWS, DRIVING TIMES, BREAKS AND REST PERIODS
Article 5
1. The minimum age for conductors shall be 18 years.
2. The minimum age for drivers' mates shall be 18 years. However, Member States may reduce the minimum age for drivers' mates to 16 years, provided that:
(a)
the carriage by road is carried out within one Member State within a 50 kilometre radius of the place where the vehicle is based, including local administrative areas the centre of which is situated within that radius;
(b)
the reduction is for the purposes of vocational training; and
(c)
there is compliance with the limits imposed by the Member State's national rules on employment matters.
Article 6
1. The daily driving time shall not exceed nine hours.
However, the daily driving time may be extended to at most 10 hours not more than twice during the week.
2. The weekly driving time shall not exceed 56 hours and shall not result in the maximum weekly working time laid down in Directive 2002/15/EC being exceeded.
3. The total accumulated driving time during any two consecutive weeks shall not exceed 90 hours.
4. Daily and weekly driving times shall include all driving time on the territory of the Community or of a third country.
5. A driver shall record as other work any time spent as described in Article 4(e) as well as any time spent driving a vehicle used for commercial operations not falling within the scope of this Regulation, and shall record any periods of availability, as defined in Article 15(3)(c) of Regulation (EEC) No 3821/85, since his last daily or weekly rest period. This record shall be entered either manually on a record sheet, a printout or by use of manual input facilities on recording equipment.
Article 7
After a driving period of four and a half hours a driver shall take an uninterrupted break of not less than 45 minutes, unless he takes a rest period.
This break may be replaced by a break of at least 15 minutes followed by a break of at least 30 minutes each distributed over the period in such a way as to comply with the provisions of the first paragraph.
Article 8
1. A driver shall take daily and weekly rest periods.
2. Within each period of 24 hours after the end of the previous daily rest period or weekly rest period a driver shall have taken a new daily rest period.
If the portion of the daily rest period which falls within that 24 hour period is at least nine hours but less than 11 hours, then the daily rest period in question shall be regarded as a reduced daily rest period.
3. A daily rest period may be extended to make a regular weekly rest period or a reduced weekly rest period.
4. A driver may have at most three reduced daily rest periods between any two weekly rest periods.
5. By way of derogation from paragraph 2, within 30 hours of the end of a daily or weekly rest period, a driver engaged in multi-manning must have taken a new daily rest period of at least nine hours.
6. In any two consecutive weeks a driver shall take at least:
-
two regular weekly rest periods, or
-
one regular weekly rest period and one reduced weekly rest period of at least 24 hours. However, the reduction shall be compensated by an equivalent period of rest taken en bloc before the end of the third week following the week in question.
A weekly rest period shall start no later than at the end of six 24-hour periods from the end of the previous weekly rest period.
7. Any rest taken as compensation for a reduced weekly rest period shall be attached to another rest period of at least nine hours.
8. Where a driver chooses to do this, daily rest periods and reduced weekly rest periods away from base may be taken in a vehicle, as long as it has suitable sleeping facilities for each driver and the vehicle is stationary.
9. A weekly rest period that falls in two weeks may be counted in either week, but not in both.
Article 9
1. By way of derogation from Article 8, where a driver accompanies a vehicle which is transported by ferry or train, and takes a regular daily rest period, that period may be interrupted not more than twice by other activities not exceeding one hour in total. During that regular daily rest period the driver shall have access to a bunk or couchette.
2. Any time spent travelling to a location to take charge of a vehicle falling within the scope of this Regulation, or to return from that location, when the vehicle is neither at the driver's home nor at the employer's operational centre where the driver is normally based, shall not be counted as a rest or break unless the driver is on a ferry or train and has access to a bunk or couchette.
3. Any time spent by a driver driving a vehicle which falls outside the scope of this Regulation to or from a vehicle which falls within the scope of this Regulation, which is not at the driver's home or at the employer's operational centre where the driver is normally based, shall count as other work.
CHAPTER III
LIABILITY OF TRANSPORT UNDERTAKINGS
Article 10
1. A transport undertaking shall not give drivers it employs or who are put at its disposal any payment, even in the form of a bonus or wage supplement, related to distances travelled and/or the amount of goods carried if that payment is of such a kind as to endanger road safety and/or encourages infringement of this Regulation.
2. A transport undertaking shall organise the work of drivers referred to in paragraph 1 in such a way that the drivers are able to comply with Regulation (EEC) No 3821/85 and Chapter II of this Regulation. The transport undertaking shall properly instruct the driver and shall make regular checks to ensure that Regulation (EEC) No 3821/85 and Chapter II of this Regulation are complied with.
3. A transport undertaking shall be liable for infringements committed by drivers of the undertaking, even if the infringement was committed on the territory of another Member State or a third country.
Without prejudice to the right of Member States to hold transport undertakings fully liable, Member States may make this liability conditional on the undertaking's infringement of paragraphs 1 and 2. Member States may consider any evidence that the transport undertaking cannot reasonably be held responsible for the infringement committed.
4. Undertakings, consignors, freight forwarders, tour operators, principal contractors, subcontractors and driver employment agencies shall ensure that contractually agreed transport time schedules respect this Regulation.
5.
(a)
A transport undertaking which uses vehicles that are fitted with recording equipment complying with Annex IB of Regulation (EEC) No 3821/85 and that fall within the scope of this Regulation, shall:
(i)
ensure that all data are downloaded from the vehicle unit and driver card as regularly as is stipulated by the Member State and that relevant data are downloaded more frequently so as to ensure that all data concerning activities undertaken by or for that undertaking are downloaded;
(ii)
ensure that all data downloaded from both the vehicle unit and driver card are kept for at least 12 months following recording and, should an inspecting officer request it, such data are accessible, either directly or remotely, from the premises of the undertaking;
(b)
for the purposes of this paragraph ‘downloaded’ shall be interpreted in accordance with the definition laid down in Annex IB, Chapter I, point (s) of Regulation (EEC) No 3821/85;
(c)
the maximum period within which the relevant data shall be downloaded under (a)(i) shall be decided by the Commission in accordance with the procedure referred to in Article 24(2).
CHAPTER IV
EXCEPTIONS
Article 11
A Member State may provide for longer minimum breaks and rest periods or shorter maximum driving times than those laid down in Articles 6 to 9 in the case of carriage by road undertaken wholly within its territory. In so doing, Member States shall take account of relevant collective or other agreements between the social partners. Nevertheless, this Regulation shall remain applicable to drivers engaged in international transport operations.
Article 12
Provided that road safety is not thereby jeopardised and to enable the vehicle to reach a suitable stopping place, the driver may depart from Articles 6 to 9 to the extent necessary to ensure the safety of persons, of the vehicle or its load. The driver shall indicate the reason for such departure manually on the record sheet of the recording equipment or on a printout from the recording equipment or in the duty roster, at the latest on arrival at the suitable stopping place.
Article 13
1. Provided the objectives set out in Article 1 are not prejudiced, each Member State may grant exceptions from Articles 5 to 9 and make such exceptions subject to individual conditions on its own territory or, with the agreement of the States concerned, on the territory of another Member State, applicable to carriage by the following:
(a)
vehicles owned or hired, without a driver, by public authorities to undertake carriage by road which do not compete with private transport undertakings;
(b)
vehicles used or hired, without a driver, by agricultural, horticultural, forestry, farming or fishery undertakings for carrying goods as part of their own entrepreneurial activity within a radius of up to 100 km from the base of the undertaking;
(c)
agricultural tractors and forestry tractors used for agricultural or forestry activities, within a radius of up to 100 km from the base of the undertaking which owns, hires or leases the vehicle;
(d)
vehicles or combinations of vehicles with a maximum permissible mass not exceeding 7,5 tonnes used:
-
by universal service providers as defined in Article 2(13) of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service (11) to deliver items as part of the universal service, or
-
for carrying materials, equipment or machinery for the driver's use in the course of his work.
These vehicles shall be used only within a 50 kilometre radius from the base of the undertaking, and on condition that driving the vehicles does not constitute the driver's main activity;
(e)
vehicles operating exclusively on islands not exceeding 2 300 square kilometres in area which are not linked to the rest of the national territory by a bridge, ford or tunnel open for use by motor vehicles;
(f)
vehicles used for the carriage of goods within a 50 km radius from the base of the undertaking and propelled by means of natural or liquefied gas or electricity, the maximum permissible mass of which, including the mass of a trailer or semi-trailer, does not exceed 7,5 tonnes;
(g)
vehicles used for driving instruction and examination with a view to obtaining a driving licence or a certificate of professional competence, provided that they are not being used for the commercial carriage of goods or passengers;
(h)
vehicles used in connection with sewerage, flood protection, water, gas and electricity maintenance services, road maintenance and control, door-to-door household refuse collection and disposal, telegraph and telephone services, radio and television broadcasting, and the detection of radio or television transmitters or receivers;
(i)
vehicles with between 10 and 17 seats used exclusively for the non-commercial carriage of passengers;
(j)
specialised vehicles transporting circus and funfair equipment;
(k)
specially fitted mobile project vehicles, the primary purpose of which is use as an educational facility when stationary;
(l)
vehicles used for milk collection from farms and the return to farms of milk containers or milk products intended for animal feed;
(m)
specialised vehicles transporting money and/or valuables;
(n)
vehicles used for carrying animal waste or carcasses which are not intended for human consumption;
(o)
vehicles used exclusively on roads inside hub facilities such as ports, interports and railway terminals;
(p)
vehicles used for the carriage of live animals from farms to local markets and vice versa or from markets to local slaughterhouses within a radius of up to 50 km.
2. Member States shall inform the Commission of the exceptions granted under paragraph 1 and the Commission shall inform the other Member States thereof.
3. Provided that the objectives set out in Article 1 are not prejudiced and adequate protection for drivers is provided, a Member State may, after approval by the Commission, grant on its own territory minor exemptions from this Regulation for vehicles used in predefined areas with a population density of less than five persons per square kilometre, in the following cases:
-
regular domestic passenger services, where their schedule is confirmed by the authorities (in which case only exemptions relating to breaks may be permitted), and
-
domestic road haulage operations for own account or for hire or reward, which have no impact on the single market and are needed to maintain certain sectors of industry in the territory concerned and where the exempting provisions of this Regulation impose a limiting radius of up to 100 km.
Carriage by road under this exemption may include a journey to an area with a population density of five persons or more per square kilometre only in order to end or start the journey. Any such measures shall be proportionate in nature and scope.
Article 14
1. Provided that the objectives set out in Article 1 are not prejudiced, Member States may, after authorisation by the Commission, grant exceptions from the application of Articles 6 to 9 to transport operations carried out in exceptional circumstances.
2. In urgent cases Member States may grant a temporary exception for a period not exceeding 30 days, which shall be notified immediately to the Commission.
3. The Commission shall inform the other Member States of any exception granted pursuant to this Article.
Article 15
Member States shall ensure that drivers of vehicles referred to in Article 3(a) are governed by national rules which provide adequate protection in terms of permitted driving times and mandatory breaks and rest periods.
CHAPTER V
CONTROL PROCEDURES AND SANCTIONS
Article 16
1. Where no recording equipment has been fitted to the vehicle in accordance with Regulation (EEC) No 3821/85, paragraphs 2 and 3 of this Article shall apply to:
(a)
regular national passenger services, and
(b)
regular international passenger services whose route terminals are located within a distance of 50 km as the crow flies from a border between two Member States and whose route length does not exceed 100 km.
2. A service timetable and a duty roster shall be drawn up by the transport undertaking and shall show, in respect of each driver, the name, place where he is based and the schedule laid down in advance for various periods of driving, other work, breaks and availability.
Each driver assigned to a service referred to in paragraph 1 shall carry an extract from the duty roster and a copy of the service timetable.
3. The duty roster shall:
(a)
include all the particulars specified in paragraph 2 for a minimum period covering the previous 28 days; these particulars must be updated on regular intervals, the duration of which may not exceed one month;
(b)
be signed by the head of the transport undertaking or by a person authorised to represent him;
(c)
be kept by the transport undertaking for one year after expiry of the period covered by it. The transport undertaking shall give an extract from the roster to the drivers concerned upon request; and
(d)
be produced and handed over at the request of an authorised inspecting officer.
Article 17
1. Member States, using the standard form set out in Decision 93/173/EEC (12), shall communicate the necessary information to the Commission to enable it to draw up every two years a report on the application of this Regulation and Regulation (EEC) No 3821/85 and developments in the fields in question.
2. This information shall be communicated to the Commission not later than 30 September of the year following the end of the two-year period concerned.
3. The report shall state what use has been made of the exceptions provided for in Article 13.
4. The Commission shall forward the report to the European Parliament and to the Council within 13 months of the end of the two-year period concerned.
Article 18
Member States shall adopt such measures as may be necessary for the implementation of this Regulation.
Article 19
1. Member States shall lay down rules on penalties applicable to infringements of this Regulation and Regulation (EEC) No 3821/85 and shall take all measures necessary to ensure that they are implemented. Those penalties shall be effective, proportionate, dissuasive and non-discriminatory. No infringement of this Regulation and Regulation (EEC) No 3821/85 shall be subjected to more than one penalty or procedure. The Member States shall notify the Commission of these measures and the rules on penalties by the date specified in the second subparagraph of Article 29. The Commission shall inform Member States accordingly.
2. A Member State shall enable the competent authorities to impose a penalty on an undertaking and/or a driver for an infringement of this Regulation detected on its territory and for which a penalty has not already been imposed, even where that infringement has been committed on the territory of another Member State or of a third country.
By way of exception, where an infringement is detected:
-
which was not committed on the territory of the Member State concerned, and
-
which has been committed by an undertaking which is established in, or a driver whose place of employment is, in another Member State or a third country,
a Member State may, until 1 January 2009, instead of imposing a penalty, notify the facts of the infringement to the competent authority in the Member State or the third country where the undertaking is established or where the driver has his place of employment.
3. Whenever a Member State initiates proceedings or imposes a penalty for a particular infringement, it shall provide the driver with due evidence of this in writing.
4. Member States shall ensure that a system of proportionate penalties, which may include financial penalties, is in force for infringements of this Regulation or Regulation (EEC) No 3821/85 on the part of undertakings, or associated consignors, freight forwarders, tour operators, principal contractors, subcontractors and driver employment agencies.
Article 20
1. The driver shall keep any evidence provided by a Member State concerning penalties imposed or the initiation of proceedings until such time as the same infringement of this Regulation can no longer lead to a second proceeding or penalty pursuant to this Regulation.
2. The driver shall produce the evidence referred to in paragraph 1 upon request.
3. A driver who is employed or at the disposal of more than one transport undertaking shall provide sufficient information to each undertaking to enable it to comply with Chapter II.
Article 21
To address cases where a Member State considers that there has been an infringement of this Regulation which is of a kind that is clearly liable to endanger road safety, it shall empower the relevant competent authority to proceed with immobilisation of the vehicle concerned until such time as the cause of the infringement has been rectified. Member States may compel the driver to take a daily rest period. Member States shall, where appropriate also withdraw, suspend or restrict an undertaking's licence, if the undertaking is established in that Member State, or withdraw, suspend or restrict a driver's driving licence. The Commission, acting in accordance with the procedure in Article 24(2) shall develop guidelines with a view to promoting a harmonised application of this Article.
Article 22
1. Member States shall assist each other in applying this Regulation and in checking compliance herewith.
2. The competent authorities of the Member States shall regularly exchange all available information concerning:
(a)
infringements of the rules set out in Chapter II committed by non-residents and any penalties imposed for such infringements;
(b)
penalties imposed by a Member State on its residents for such infringements committed in other Member States.
3. The Member States shall regularly send relevant information concerning the national interpretation and application of this Regulation to the Commission, which will make this information available in electronic form to other Member States.
4. The Commission shall support dialogue between Member States concerning national interpretation and application of this Regulation through the Committee referred to in Article 24(1).
Article 23
The Community shall enter into any negotiations with third countries which may prove necessary for the purpose of implementing this Regulation.
Article 24
1. The Commission shall be assisted by the Committee set up under Article 18(1) of Regulation (EEC) No 3821/85.
2. Where reference is made to this paragraph, Articles 3 and 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.
3. The Committee shall adopt its rules of procedure.
Article 25
1. At the request of a Member State, or on its own initiative, the Commission shall:
(a)
examine cases where differences in the application and enforcement of any of the provisions of this Regulation arise and particularly concerning driving times, breaks and rest periods;
(b)
clarify the provisions of this Regulation, with a view to promoting a common approach.
2. In the cases referred to in paragraph 1 the Commission shall take a decision on a recommended approach in accordance with the procedure referred to in Article 24(2). The Commission shall communicate its decision to the European Parliament, the Council and to the Member States.
CHAPTER VI
FINAL PROVISIONS
Article 26
Regulation (EEC) No 3821/85 is hereby amended as follows:
1.
Article 2 shall be replaced by the following:
‘Article 2
For the purpose of this Regulation the definitions set out in Article 4 of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 (13) shall apply.
2.
Article 3(1), (2) and (3) shall be replaced as follows:
‘1. Recording equipment shall be installed and used in vehicles registered in a Member State which are used for the carriage of passengers or goods by road, except the vehicles referred to in Article 3 of Regulation (EC) No 561/2006. Vehicles referred to in Article 16(1) of Regulation (EC) No 561/2006 and vehicles, which were exempt from the scope of application of Regulation (EEC) No 3820/85, but which are no longer exempt under Regulation (EC) No 561/2006 shall have until 31 December 2007 to comply with this requirement.
2. Member States may exempt vehicles mentioned in Articles 13(1) and (3) of Regulation (EC) No 561/2006 from application of this Regulation.
3. Member States may, after authorisation by the Commission, exempt from application of this Regulation vehicles used for the transport operations referred to in Article 14 of Regulation (EC) No 561/2006.’;
3.
Article 14(2) shall be replaced as follows:
‘2. The undertaking shall keep record sheets and printouts, whenever printouts have been made to comply with Article 15(1), in chronological order and in a legible form for at least a year after their use and shall give copies to the drivers concerned who request them. The undertaking shall also give copies of downloaded data from the driver cards to the drivers concerned who request them and the printed papers of these copies. The record sheets, printouts and downloaded data shall be produced or handed over at the request of any authorised inspecting officer.’;
4.
Article 15 shall be amended as follows:
-
in paragraph 1, the following subparagraph shall be added:
‘Where a driver card is damaged, malfunctions, or is not in the possession of the driver, the driver shall:
(a)
at the start of his journey, print out the details of the vehicle the driver is driving, and shall enter onto that printout:
(i)
details that enable the driver to be identified (name, driver card or driver's licence number), including his signature;
(ii)
the periods referred to in paragraph 3, second indent (b), (c) and (d);
(b)
at the end of his journey, print out the information relating to periods of time recorded by the recording equipment, record any periods of other work, availability and rest undertaken since the printout that was made at the start of the journey, where not recorded by the tachograph, and mark on that document details that enable the driver to be identified (name, driver card or driver's licence number), including the driver's signature.’,
-
paragraph 2, second subparagraph shall be replaced by the following:
‘When as a result of being away from the vehicle, a driver is unable to use the equipment fitted to the vehicle, the periods of time referred to in paragraph 3, second indent (b), (c) and (d) shall:
(a)
if the vehicle is fitted with recording equipment in conformity with Annex I, be entered on the record sheet, either manually, by automatic recording or other means, legibly and without dirtying the sheet; or
(b)
if the vehicle is fitted with recording equipment in conformity with Annex IB, be entered onto the driver card using the manual entry facility provided in the recording equipment.
Where there is more than one driver on board the vehicle fitted with recording equipment in conformity with Annex IB, each driver shall ensure that his driver card is inserted into the correct slot in the tachograph.’,
-
paragraph 3(b) and (c) shall be replaced by the following:
‘(b)
“other work” means any activity other than driving, as defined in Article 3(a) of Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (14), and also any work for the same or another employer within or outside of the transport sector, and must be recorded under this sign
;
(c)
“availability” defined in Article 3(b) of Directive 2002/15/EC must be recorded under this sign
.
-
paragraph 4 shall be deleted,
-
paragraph 7 shall be replaced by the following:
‘7.
(a)
Where the driver drives a vehicle fitted with recording equipment in conformity with Annex I, the driver must be able to produce, whenever an inspecting officer so requests:
(i)
the record sheets for the current week and those used by the driver in the previous 15 days;
(ii)
the driver card if he holds one, and
(iii)
any manual record and printout made during the current week and the previous 15 days as required under this Regulation and Regulation (EC) No 561/2006.
However, after 1 January 2008, the time periods referred to under (i) and (iii) shall cover the current day and the previous 28 days.
(b)
Where the driver drives a vehicle fitted with recording equipment in conformity with Annex IB, the driver must be able to produce, whenever an inspecting officer so requests:
(i)
the driver card of which he is holder;
(ii)
any manual record and printout made during the current week and the previous 15 days as required under this Regulation and Regulation (EC) No 561/2006, and
(iii)
the record sheets corresponding to the same period as the one referred to in the previous subparagraph during which he drove a vehicle fitted with recording equipment in conformity with Annex I.
However, after 1 January 2008, the time periods referred to under (ii) shall cover the current day and the previous 28 days.
(c)
An authorised inspecting officer may check compliance with Regulation (EC) No 561/2006 by analysis of the record sheets, of the displayed or printed data which have been recorded by the recording equipment or by the driver card or, failing this, by analysis of any other supporting document that justifies non-compliance with a provision, such as those laid down in Article 16(2) and (3).’
Article 27
Regulation (EC) No 2135/98 is hereby amended as follows:
1.
Article 2(1)(a) shall be replaced by the following:
‘1.
(a)
From the 20th day following the day of publication of Regulation (EC) No 561/2006 of the European Parliament and of the Council of 15 March 2006 on the harmonisation of certain social legislation relating to road transport and amending Council Regulations (EEC) No 3821/85 and (EC) No 2135/98 (15) vehicles put into service for the first time shall be fitted with recording equipment in accordance with the requirements of Annex IB to Regulation (EEC) No 3821/85.
2.
Article 2(2) shall be replaced by the following:
‘2. Member States shall take the necessary measures to ensure that they are able to issue driver cards at the latest on the 20th day following the day of publication of Regulation (EC) No 561/2006.’
Article 28
Regulation (EEC) No 3820/85 is hereby repealed and replaced by this Regulation.
Notwithstanding, paragraphs 1, 2 and 4 of Article 5 of Regulation (EEC) No 3820/85 shall continue to apply until the dates set out in Article 15(1) of Directive 2003/59/EC.
Article 29
This Regulation shall enter into force on 11 April 2007, with the exception of Articles 10(5), 26(3) and (4) and 27, which shall enter into force on 1 May 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Strasbourg, 15 March 2006. | [
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COMMISSION DECISION of 5 March 1999 amending Council Decision 79/542/EEC and Decisions 92/160/EEC, 92/260/EEC and 93/195/EEC and 93/197/EEC with regard to the animal health conditions for the temporary admission, re-entry and imports into the Community of registered horses from certain parts of Saudi Arabia (notified under document number C(1999) 496) (Text with EEA relevance) (1999/228/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 90/426/EEC of 26 June 1990 on animal health conditions governing the movement and imports from third countries of equidae (1), as last amended by the Act of Accession of Austria, Finland and Sweden, and in particular Articles 12, 13, 15, 16 and 19(ii) thereof,
Whereas by Council Decision 79/542/EEC (2), as last amended by Commission Decision 98/622/EC (3), a list of third countries from which Member States authorise imports of bovine animals, swine, equidae, sheep and goats, fresh meat and meat products has been established;
Whereas by Commission Decision 92/160/EEC (4), as last amended by Decision 97/685/EC (5), the Commission has established the regionalisation of certain third countries for imports of equidae;
Whereas the health conditions and veterinary certification for the temporary admission, re-entry and imports of registered horses are laid down respectively in Commission Decisions 92/260/EEC (6), 93/195/EEC (7) and 93/197/EEC (8), all as last amended by Decision 98/594/EC (9);
Whereas following a Commission veterinary inspection mission to Saudi Arabia the animal health situation appears to be under the satisfactory control of the veterinary services and in particular the movement of equidae from certain parts of the territory into the rest of the country appears to be well controlled;
Whereas the veterinary authorities of Saudi Arabia have provided a written undertaking to notify within 24 hours by fax, telegram, or telex to the Commission and the Member States the confirmation of any infectious or contagious disease in equidae mentioned in Annex A to Directive 90/426/EEC, which are compulsorily notifiable in the country, and within due time any change in the vaccination or import policy in respect of equidae;
Whereas following a serological survey carried out over the entire territory of Saudi Arabia, the country should be considered free of glanders and dourine for at least six months; Venezuelan equine encephalomyelitis and vesicular stomatitis have never occurred, however serological evidence was found for equine viral arteritis;
Whereas taking account of the results of the above survey, parts of Saudi Arabia have been free from African horse sickness for more than two years and vaccination against this disease has not been carried out in the country during the last 12 months and is officially banned; whereas, however, certain parts of Saudi Arabia cannot be considered free of the disease;
Whereas the competent authorities of Saudi Arabia have notified to the Commission the official approval of an insect-protected quarantine station near Riyadh and the specimen signatures of the official veterinarians entitled to sign international export certificates;
Whereas for reason of the health situation in certain parts of Saudi Arabia it appears appropriate to regionalise the country concerned, so as to allow importation into the Community of registered horses only from the disease-free part of the territory of Saudi Arabia;
Whereas the animal health conditions and veterinary certification must be adopted according to the animal health situation of the third country concerned; whereas the present case relates only to registered horses;
Whereas for clarity the ISO country code should be used for amendments of lists of third countries;
Whereas Decision 79/542/EEC and Decisions 92/160/EEC, 92/260/EEC, 93/195/EEC and 93/197/EEC must be amended accordingly;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
In Part 2 of the Annex to Decision 79/542/EEC, special column for registered horses, the following line is inserted in accordance with the alphabetical order of the ISO country code:
TABLE
Article 2
The following words are added to the Annex to Decision 92/160/EEC:
'Saudi Arabia
the whole of the territory, excluding the protection and surveillance zones established in accordance with the provisions of Article 13(2)(a) of Directive 90/426/EEC, and delineated as follows:
1. Protection zone
1.1. Province Jizan
- the whole province, except the part north of the road control post at Ash Shuqaiq at road No 5 and north of road No 10.
1.2. Province Asir
- the part of the province delineated by road No 10 between Ad Darb, Abha and Kamis Mushayt to the north, except the equestrian clubs at the air and military bases,
- the part of the province delineated to the north by road No 15 leading from Kamis Mushayt through Jarash, Al Utfah and Dhahran Al Janoub to the border with the province of Najran,
- the part of the province delineated to the north by the road leading from Al Utfah through Al Fayd to Badr Al Janoub (Province Najran).
1.3. Province Najran
- the part of the province delineated by the road from Al Utfah (province Asir) to Badr Al Janoub and to As Sebt and from As Sebt along Wadi Habunah to the conjunction with road No 177 between Najran and Riyadh to the north and from this conjunction by road No 177 leading south to the conjunction with road No 15 from Najran to Sharourah,
- the part of the province south of road No 15 between Najran and Sharourah and the border with the Yemen.
2. Surveillance zone
2.1. Province Jizan
- the part of the province north of the road control post at Ash Shuqaiq at road No 5, controlled by the road control post at Al Qahmah, and north of road No 10.
2.2. Province Asir
- the equestrian clubs at the air and military bases,
- the part of the province between the border of the protection zone and road No 209 from Ash Shuqaiq to the road control post Muhayil on road No 211,
- the part of the province between the control post on road No 10 south of Abha, the city of Abha and the road control post Ballasmer 65 km from Abha on road No 15 leading north,
- the part of the province between Khamis Mushayt and the road control post 90 km from Abha on road No 255 to Samakh and the road control post at Yarah, 90 km from Abha, on road No 10 leading to Riyadh,
- the part of the province south of a virtual line between the road control post at Yarah on road No 10 and Khashm Ghurab on road No 177 up to the border of the province of Najran.
2.3. Province Najran
- the part of the province south of a line between the road control post at Yarah on road No 10 and Khashm Ghurab on road No 177 from the border of the province of Najran until the road control post Khashm Ghurab, 80 km from Najran, and west of road No 175 leading to Sharourah`.
Article 3
Decision 92/260/EEC is amended as follows:
1. The list of third countries in Group E of Annex I is replaced by the following:
'United Arab Emirates (AE), Bahrain (BH), Algeria (DZ), Egypt (1) (EG), Israel (IL), Jordan (JO), Kuwait (KW), Lebanon (LB), Libya (LY), Morocco (MA), Malta (MT), Mauritius (MU), Oman (OM), Qatar (QA), Saudi Arabia (1) (SA), Syria (SY), Tunisia (TN), Turkey (1) (TR)`.
2. The title of the health certificate set out in Annex II(E) is replaced by the following:
'HEALTH CERTIFICATE
for the temporary admission of registered horses into Community territory from United Arab Emirates, Bahrain, Algeria, Egypt (1), Israel, Jordan, Kuwait, Lebanon, Libya, Morocco, Malta, Mauritius, Oman, Qatar, Saudi Arabia (1), Syria, Tunisia, Turkey (1) for a period of less than 90 days`.
Article 4
Decision 93/195/EEC is amended as follows:
1. The list of third countries in Group E of Annex I is replaced by the following:
'United Arab Emirates (AE), Bahrain (BH), Algeria (DZ), Egypt (1) (EG), Israel (IL), Jordan (JO), Kuwait (KW), Lebanon (LB), Libya (LY), Morocco (MA), Malta (MT), Mauritius (MU), Oman (OM), Qatar (QA), Saudi Arabia (1) (SA), Syria (SY), Tunisia (TN), Turkey (1) (TR)`.
2. The list of third countries under Group E in the title of the health certificate set out in Annex II is replaced by the following:
'United Arab Emirates, Bahrain, Algeria, Egypt (1), Israel, Jordan, Kuwait, Lebanon, Libya, Morocco, Malta, Mauritius, Oman, Qatar, Saudi Arabia (1), Syria, Tunisia, Turkey (1)`.
Article 5
Decision 93/197/EEC is amended as follows:
1. The list of third countries in Group E of Annex I is replaced by the following:
'United Arab Emirates (2) (AE), Bahrain(2) (BH), Algeria (DZ), Egypt (1) (2) (EG), Israel (IL), Jordan (2) (JO), Kuwait (2) (KW), Lebanon (2) (LB), Libya (2) (LY), Morocco (MA), Malta (MT), Mauritius (MU), Oman (2) (OM), Qatar (2) (QA), Saudi Arabia (1) (2) (SA), Syria (2) (SY), Tunisia (TN)`.
2. The title of the health certificate set out in Annex II(E) is replaced by the following:
'HEALTH CERTIFICATE
for imports into Community territory of registered horses from United Arab Emirates, Bahrain, Egypt (1), Jordan, Kuwait, Lebanon, Libya, Oman, Qatar, Saudi Arabia (1), Syria and of registered equidae and equidae for breeding and production from Algeria, Israel, Morocco, Malta, Mauritius, Tunisia`.
Article 6
This Decision is addressed to the Member States.
Done at Brussels, 5 March 1999. | [
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COMMISSION REGULATION (EEC) No 2815/91 of 25 September 1991 re-establishing the levying of customs duties on products falling within CN code 3923 21 00, originating in Thailand, to which the preferential tariff arrangements set out in Council Regulation (EEC) No 3831/90 apply
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3831/90 of 20 December 1990 applying generalized tariff preferences for 1991 in respect of certain industrial products originating in developing countries (1), and in particular Article 9 thereof,
Whereas, pursuant to Articles 1 and 6 of Regulation (EEC) No 3831/90, suspension of customs duties shall be accorded to each of the countries or territories listed in Annex III other than those listed in column 4 of Annex I within the framework of the preferential tariff ceilings fixed in column 6 of Annex I;
Whereas, as provided for in Article 7 of that Regulation, as soon as the individual ceilings in question are reached at Community level, the levying of customs duties on imports of the products in question originating in each of the countries and territories concerned may at any time be re-established;
Whereas, in the case of products falling within CN code 3923 21 00, originating in Thailand, the individual ceiling was fixed at ECU 4 599 000; whereas, on 7 May 1991, imports of these products into the Community originating in Thailand reached the ceiling in question after being charged thereagainst; whereas, it is appropriate to re-establish the levying of customs duties in respect of the products in question against Thailand,
HAS ADOPTED THIS REGULATION:
Article 1
As from 30 September 1991, the levying of customs duties, suspended pursuant to Regulation (EEC) No 3831/90, shall be re-established on imports into the Community of the following products originating in Thailand:
Order No CN code Description 10.0480 3923 21 00 Sacks and bags (including cones)
- Of polymers of ethylene
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 September 1991. | [
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Commission Regulation (EC) No 593/2003
of 31 March 2003
suspending the preferential customs duties and re-establishing the Common Customs Tariff duty on imports of multiflorous (spray) carnations originating in Israel
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 4088/87 of 21 December 1987 fixing conditions for the application of preferential customs duties on imports of certain flowers originating in Cyprus, Israel, Jordan and Morocco and the West Bank and the Gaza Strip(1), as last amended by Regulation (EC) No 1300/97(2), and in particular Article 5(2)(b) thereof,
Whereas:
(1) Regulation (EEC) No 4088/87 lays down the conditions for applying a preferential duty on large-flowered roses, small-flowered roses, uniflorous (bloom) carnations and multiflorous (spray) carnations within the limit of tariff quotas opened annually for imports into the Community of fresh cut flowers.
(2) Council Regulation (EC) No 747/2001(3), as amended by Commission Regulation (EC) No 209/2003(4), opens and provides for the administration of Community tariff quotas for cut flowers and flower buds, fresh, originating in Cyprus, Egypt, Israel, Malta, Morocco and the West Bank and the Gaza Strip.
(3) Commission Regulation (EC) No 590/2003(5) fixes the Community producer and import prices for carnations and roses for the application of the import arrangements.
(4) Commission Regulation (EEC) No 700/88(6), as last amended by Regulation (EC) No 2062/97(7), lays down the detailed rules for the application of the arrangements.
(5) On the basis of prices recorded pursuant to Regulations (EEC) No 4088/87 and (EEC) No 700/88, it must be concluded that the conditions laid down in Article 2(2) of Regulation (EEC) No 4088/87 for suspension of the preferential customs duty are met for multiflorous (spray) carnations originating in Israel. The Common Customs Tariff duty should be re-established.
(6) The quota for the products in question covers the period 1 January to 31 December 2003. As a result, the suspension of the preferential duty and the reintroduction of the Common Customs Tariff duty apply up to the end of that period at the latest.
(7) In between meetings of the Management Committee for Live Plants and Floriculture Products, the Commission must adopt such measures,
HAS ADOPTED THIS REGULATION:
Article 1
For imports of multiflorous (spray) carnations (CN code ex 0603 10 20 ) originating in Israel, the preferential customs duty fixed by Regulation (EC) No 747/2001 is hereby suspended and the Common Customs Tariff duty is hereby re-established.
Article 2
This Regulation shall enter into force on 1 April 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 31 March 2003. | [
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*****
COMMISSION DECISION
of 13 September 1988
repealing Decision 87/107/EEC on the duty-free importation of goods intended to be distributed or made available free of charge to victims of the earthquake which occurred in September 1986 in the Hellenic Republic
(Only the Greek text is authentic)
(88/497/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 918/83 of 28 March 1983 setting up a Community system of reliefs from customs duty (1), as last amended by Regulation (EEC) No 1315/88 (2), and in particular Article 81 thereof,
Whereas by Decision 87/107EEC (3) the Commission authorized the Greek Government to admit free of import duty goods intended to be distributed or made available free of charge to victims of the earthquake which occurred in the Hellenic Republic in September 1986;
Whereas the information sent to the Commission by the Greek Government pursuant to Article 3 of Decision 87/107/EEC indicates that no applications for duty-free importation of goods intended for the victims of that earthquake have been received since October 1987; whereas, in the circumstances, the Member States having been consulted, it seems appropriate to repeal the said Decision,
HAS ADOPTED THIS DECISION:
Article 1
Decision 87/107/EEC is hereby repealed.
Article 2
This Decision is addressed to the Hellenic Republic.
Done at Brussels, 13 September 1988. | [
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COMMISSION DECISION
of 26 June 2008
concerning certain protection measures in relation to highly pathogenic avian influenza of subtype H5N1 in Croatia and Switzerland
(notified under document number C(2008) 3020)
(Text with EEA relevance)
(2008/555/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 91/496/EEC of 15 July 1991 laying down the principles governing the organisation of veterinary checks on animals entering the Community from third countries and amending Directives 89/662/EEC, 90/425/EEC and 90/675/EEC (1), and in particular Article 8(1) and (6) thereof,
Having regard to Council Directive 97/78/EC of 18 December 1997 laying down the principles governing the organisation of veterinary checks on products entering the Community from third countries (2), and in particular Article 2(1) and (5) thereof,
Whereas:
(1)
Commission Decision 2006/696/EC of 28 August 2006 laying down a list of third countries from which poultry, hatching eggs, day-old chicks, meat of poultry, ratites and wild game-birds, eggs and egg products and specified pathogen-free eggs may be imported into and transit through the Community and the applicable veterinary certification conditions, and amending Decisions 93/342/EEC, 2000/585/EC and 2003/812/EC (3) lays down veterinary certification conditions for imports into and transit through the Community of poultry and certain products thereof. In the interests of clarity and consistency of Community rules, it is appropriate that the definitions of poultry and hatching eggs in that Decision be taken into account for the purposes of this Decision.
(2)
Commission Regulation (EC) No 318/2007 of 23 March 2007 laying down animal health conditions for imports of certain birds into the Community and the quarantine conditions thereof (4) lays down the animal health conditions for imports of certain birds into the Community from third countries and parts thereof. In the interests of clarity and consistency of Community rules, it is appropriate that the definition of birds in that Regulation be taken into account for the purposes of this Decision.
(3)
Commission Decision 2006/265/EC of 31 March 2006 concerning certain protection measures in relation to a suspicion of highly pathogenic avian influenza in Switzerland (5) and Commission Decision 2006/533/EC of 28 July 2006 concerning certain temporary protection measures in relation to highly pathogenic avian influenza in Croatia (6) were adopted following positive findings for highly pathogenic avian influenza of subtype H5N1 in wild birds in both of those third countries. Those Decisions provided that Member States are to suspend imports from certain parts of Croatia and Switzerland of live poultry, ratites, farmed and wild feathered game and certain other live birds, including pet birds and hatching eggs of those species, as well as certain products of birds.
(4)
Commission Decision 2006/415/EC of 14 June 2006 concerning certain protection measures in relation to highly pathogenic avian influenza of the subtype H5N1 in poultry in the Community and repealing Decision 2006/135/EC (7) lays down certain biosecurity and restriction measures to prevent the spread of that disease, including the establishment of areas A and B following a suspected or confirmed outbreak of the disease in poultry.
(5)
Commission Decision 2006/563/EC of 11 August 2006 concerning certain protection measures in relation to highly pathogenic avian influenza of subtype H5N1 in wild birds in the Community and repealing Decision 2006/115/EC (8) lays down certain protection measures to prevent the spread of that disease from wild birds to poultry including, based on risk assessment, the establishment of control and monitoring areas taking into account the epidemiological, geographical and ecological factors following a suspected or confirmed positive finding for that disease in wild birds.
(6)
Croatia has notified the Commission that the competent authorities of that third country are applying protection measures that are equivalent to those applied by the competent authorities of the Member States, as provided for in Commission Decision 2006/563/EC, when highly pathogenic avian influenza of H5N1 subtype is suspected or confirmed in wild birds and that it will immediately notify the Commission of any future changes to its animal health status, including specifically any positive findings of that disease in wild birds.
(7)
Switzerland has notified the Commission that the competent authorities of that country are applying protection measures that are equivalent to those applied by the competent authorities of the Member States, as provided for in Decisions 2006/415/EC and 2006/563/EC, when highly pathogenic avian influenza of subtype H5N1 is suspected or confirmed in poultry or wild birds and that it will immediately notify the Commission of any future changes to its animal health status, including specifically any outbreak or positive findings of that disease in poultry or wild birds. Account should also be taken of the Agreement between the European Community and the Swiss Confederation on trade in agricultural products (9).
(8)
The Commission will immediately inform the Member States and forward any such information received from the competent authorities of Croatia and Switzerland to them.
(9)
Decisions 2006/265/EC and 2006/533/EC expired on 30 June 2007.
(10)
In the light of the current epidemiological situation as regards highly pathogenic avian influenza of subtype H5N1 in the Community and in third countries, and in view of the guarantees received from Croatia, it is appropriate that in the event of a positive finding of that disease in a wild bird in the territory of Croatia, Community protection measures concerning that country are only applied to those parts of Croatia for which the competent authority of that country does apply equivalent protection measures as laid down in Decision 2006/563/EC.
(11)
In view of the guarantees received from Switzerland, it is appropriate that in the event of a positive finding of avian influenza of subtype H5N1 in a wild bird or an outbreak of that disease in poultry in the territory of Switzerland, protection measures concerning that country are only applied to those parts of Switzerland for which the competent authority of that country does apply equivalent protection measures as laid down in Decisions 2006/415/EC and 2006/563/EC.
(12)
Commission Decision 2007/777/EC of 29 November 2007 laying down the animal and public health conditions and model certificates for imports of certain meat products and treated stomachs, bladders and intestines for human consumption from third countries and repealing Decision 2005/432/EC (10) lays down the list of third countries from which Member States may authorise the importation of meat products and treated stomachs, bladders and intestines, and establishes treatment regimes considered effective in inactivating the respective pathogens. In order to prevent the risk of disease transmission via such products, appropriate treatment must be applied depending on the health status of the country of origin and the species the products are obtained from. It is therefore appropriate that a derogation from the provision suspending imports of meat products of wild feathered game originating in Croatia and Switzerland should be granted, provided the products have been treated to a temperature of at least 70 °C throughout the products.
(13)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
1. Member States shall suspend imports or the introduction into the Community from that part of the territory of Croatia referred to in paragraph 2(a) and from that part of the territory of Switzerland referred to in paragraph 2(b) of the following commodities:
(a)
poultry as defined in Article 2(a) of Decision 2006/696/EC;
(b)
hatching eggs as defined in Article 2(b) of Decision 2006/696/EC;
(c)
birds as defined in Article 3(a) of Regulation (EC) No 318/2007 and their hatching eggs;
(d)
meat, minced meat, meat preparations, mechanically separated meat of wild feathered game;
(e)
meat products consisting of or containing meat of wild feathered game;
(f)
raw pet food and unprocessed feed material containing any parts of wild feathered game;
(g)
non-treated game trophies from any birds.
2. The suspension provided for in paragraph 1 shall apply to imports or the introduction into the Community from:
(a)
as regards Croatia, all areas of the territory of Croatia for which the competent authorities of Croatia do formally apply protection measures that are equivalent to those laid down in Decision 2006/563/EC;
(b)
as regards Switzerland, all areas of the territory of Switzerland for which the competent authorities of Switzerland do formally apply protection measures that are equivalent to those laid down in Decisions 2006/415/EC and 2006/563/EC.
3. By way of derogation from paragraph 1(e), Member States shall authorise imports and the introduction into the Community of meat products consisting of or containing meat of wild feathered game under the condition that the meat of these species has undergone at least one of the specific treatments referred to under points B, C or D in Part 4 of Annex II to Decision 2007/777/EC.
Article 2
Member States shall immediately take the necessary measures to comply with this Decision and publish those measures. They shall immediately inform the Commission thereof.
Article 3
This Decision shall apply until 30 June 2009.
Article 4
This Decision is addressed to the Member States.
Done at Brussels, 26 June 2008. | [
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COMMISSION REGULATION (EC) No 1272/1999
of 17 June 1999
laying down, for the period 1 July 1999 to 30 June 2000, detailed rules of application for the tariff quotas for beef originating in Estonia, Latvia and Lithuania
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1926/96 of 7 October 1996 establishing certain concessions in the form of Community tariff quotas for certain agricultural products and providing for the adjustment, as an autonomous and transitional measure, of certain agricultural concessions provided for in the agreements on free trade and trade-related matters with Estonia, Latvia and Lithuania, to take account of the Agreement on Agriculture concluded during the Uruguay Round Multilateral Trade Negotiations(1), and in particular Article 5 thereof,
(1) Whereas Regulation (EC) No 1926/96 provides for the opening of certain annual tariff quotas for products made from beef and veal; whereas imports under those quotas, benefit from an 80 % reduction in the customs duties set out in the Common Customs Tariff (CCT); whereas detailed rules of application for these quotas should be laid down for the period 1 July 1999 to 30 June 2000;
(2) Whereas to ensure orderly importation of the quantities laid down for the period 1 July 1999 to 30 June 2000, they should be staggered over the year of import;
(3) Whereas, in view of the risk of speculation inherent in these arrangements for beef and veal, clear conditions should be laid down as regards access by traders; whereas verification of the abovementioned conditions requires that applications be submitted in the Member State in which the importer is entered in the value-added tax register;
(4) Whereas provision should be made for import rights to be allocated after a period for consideration and, where necessary, the application of a single percentage reduction;
(5) Whereas, while the provisions of the abovementioned agreements intended to guarantee the origin of the product should be complied with, the administration of the arrangements should be based on import licences; whereas, to that end, detailed rules should be laid down on, in particular, the submission of applications and the information which must appear in applications and licences, if necessary by way of derogation from, or by supplementing, certain provisions of Commission Regulation (EEC) No 3719/88 of 16 November 1988 laying down common detailed rules for the application of the system of import and export licences and advance fixing certificates for agricultural products(2), as last amended by Regulation (EC) No 1127/1999(3), and Commission Regulation (EC) No 1445/95 of 26 June 1995 on rules of application for import and export licences in the beef and veal sector and repealing Regulation (EEC) No 2377/80(4), as last amended by Regulation (EC) No 2648/98(5);
(6) Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
1. During the period 1 July 1999 to 30 June 2000, the following may be imported in accordance with this Regulation:
- 1800 tonnes of fresh, refrigerated or frozen beef and veal falling within CN codes 0201 and 0202, originating in Lithuania, Latvia and Estonia. The serial number of the quota shall be 09.4561,
- 240 tonnes of products falling within CN code 1602 50 10, originating in Latvia. The serial number of the quota shall be 09.4562.
2. The rates of customs duty fixed in the Common Customs Tariff (CCT) shall be reduced by 80 % for the quantities indicated in paragraph 1.
3. The quantities indicated in paragraph 1 may be imported as follows:
- 50 % in the period 1 July to 31 December 1999,
- 50 % in the period 1 January to 30 June 2000.
If, during the period 1 July 1999 to 30 June 2000, the quantities for which applications for import rights are submitted for the period specified in the first indent are less than those available, the balances shall be added to the quantities available for the following period.
Article 2
1. In order to qualify for the import quotas referred to in Article 1, applicants must be natural or legal persons who, at the time applications are submitted, can prove to the satisfaction of the competent authorities of the Member State concerned that they have been active in trade in beef and veal with third countries at least once during the last 12 months and are entered in a national VAT register.
2. Applications for import rights must be submitted only in the Member State in which the applicant is entered in a national VAT register.
3. For each of the groups of products referred to in the first and second indents of Article 1(1):
- applications for import rights must cover a minimum of 15 tonnes of product without exceeding the quantity available for the period concerned,
- applicants may submit only one application,
- where an applicant submits more than one application for a group, all his applications for that group shall be rejected.
Article 3
1. Applications for import rights may be submitted only:
- between 6 and 16 July 1999,
- between 1 and 11 February 2000.
2. After checking the documents submitted, Member States shall send the Commission, within five working days of the end of the period for the submission of applications, the list of applicants and the quantities applied for with respect to each serial number.
All notifications, including notifications of nil applications, shall be made by fax, drawn up, where applications have been received, in accordance with the model set out in Annexes I and II.
3. The Commission shall decide as soon as possible the extent to which applications may be accepted for each group of products referred to in the indents of Article 1(1). Where the quantities for which applications have been submitted exceed the quantities available, the Commission shall fix a single percentage reduction in them for each group of products referred to in the indents of Article 1(1).
Article 4
1. Imports of the quantities allocated shall be subject to the presentation of one or more import licences.
2. Import licence applications may be submitted only in the Member State in which the applicant has applied for import rights.
3. After the Commission has notified the quantities allocated pursuant to Article 3(3), import licences shall be issued on application by and in the names of the traders who have obtained import rights.
4. Licence applications and licences shall show:
(a) in box 8:
- in the case of the first indent of Article 1(1), the country of origin,
- in the case of the second indent of Article 1(1), "Latvia".
Licences shall carry an obligation to import from one or more of the countries indicated;
(b) in box 16, one of the following groups of Combined Nomenclature subheadings within the same indent:
- 0201, 0202,
- 1602 50 10;
(c) in box 20, at least one of the following:
- Reglamento (CE) n° 1272/1999
- Forordning (EF) nr. 1272/1999
- Verordnung (EG) Nr. 1272/1999
- Κανονισμός (ΕΚ) αριθ. 1272/1999
- Regulation (EC) No 1272/1999
- Règlement (CE) n° 1272/1999
- Regolamento (CE) n. 1272/1999
- Verordening (EG) nr. 1272/1999
- Regulamento (CE) n.o 1272/1999
- Asetus (EY) N:o 1272/1999
- Förordning (EG) nr 1272/1999.
5. Licences issued shall be valid throughout the Community.
Article 5
Without prejudice to the provisions of this Regulation, Regulations (EEC) No 3719/88 and (EC) No 1445/95 shall apply.
Article 6
Products shall qualify for the duties referred to in Article 1 on presentation of an EUR.1 movement certificate issued by the exporting country in accordance with Protocol 3 annexed to the Europe Agreements with the Baltic countries or a declaration drawn up by the exporter in accordance with that Protocol.
Article 7
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 June 1999. | [
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Commission Regulation (EC) No 307/2004
of 20 February 2004
amending Regulation (EC) No 1520/2000 laying down common detailed rules for the application of the system of granting export refunds on certain agricultural products exported in the form of goods not covered by Annex I to the Treaty, and the criteria for fixing the amounts of such refunds, and providing special measures in respect of certain refund certificates
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3448/93 of 6 December 1993 laying down the trade arrangements applicable to certain goods resulting from the processing of agricultural products(1), and in particular the first subparagraph of Article 8(3) thereof,
Whereas:
(1) As provided for in Article 19 of Commission Regulation (EC) No 1520/2000(2), that Regulation is to be adapted in line with amendments to the Combined Nomenclature and Annex B is to be adapted so as to maintain equivalence with the respective Annexes to the Regulations referred to in Article 1(1).
(2) Commission Regulation (EC) No 1789/2003 of 11 September 2003 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff(3) introduced amendments to the Combined Nomenclature for certain goods. In addition, Annex V to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector(4) provides that from 1 February 2004 no export refunds may be paid on the sugar element of active yeasts.
(3) Regulation (EC) No 1520/2000 should be updated in order to take account of those changes.
(4) With the entry into force of this Regulation the sugar element incorporated in active yeasts, for which operators may have applied for refund certificates in accordance with Regulation (EC) No 1520/2000, will no longer be eligible for refund when they are exported to third countries.
(5) Reduction of refund certificates and pro rata release of the corresponding security should be allowed where operators can demonstrate to the satisfaction of the national competent authority that their claims for refunds have been affected by the entry into force of this Regulation.
(6) When assessing requests for reduction of the amount of the refund certificate and proportional release of the relevant security, the national competent authority should, in cases of doubt, have regard in particular to the documents referred to in Article 1(2) of Council Regulation (EEC) No 4045/89 of 21 December 1989 on scrutiny by Member States of transactions forming part of the system of financing by the Guarantee Section of the European Agricultural Guidance and Guarantee Fund and repealing Directive 77/435/EEC(5) without prejudice to the application of the other provisions of that Regulation.
(7) For administrative reasons it is appropriate to provide that requests for reduction of the amount of the refund certificate and release of the security are to be made within a short period and that the amounts for which reductions have been accepted are to be notified to the Commission in time for their inclusion in the determination of the amount for which refund certificates for use from 1 April 2004 are to be issued pursuant to Regulation (EC) No 1520/2000.
(8) Since the amendments to the Combined Nomenclature introduced by Regulation (EC) No 1789/2003 and the amendments introduced by Regulation (EC) No 39/2004 are applicable from 1 January 2004 and 1 February 2004 respectively, the amendments provided for in this Regulation should be applicable from the same dates.
(9) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee on horizontal questions concerning trade in processed agricultural products not listed in Annex I to the Treaty,
HAS ADOPTED THIS REGULATION:
Article 1
In Regulation (EC) No 1520/2000, Annex B is amended as follows:
(a) in the row beginning with the entry " 1905 90 40 to 1905 90 90 " in column 1, that entry is replaced by:
" 1905 90 45 to 1905 90 90";
(b) in the row beginning with the entry " 2102 10 31 and 2102 10 39 " in column 1, the "X" in column 6 is deleted.
Article 2
1. Refund certificates issued in accordance with Regulation (EC) No 1520/2000 in respect of exports of the agricultural products for which export refunds have been abolished pursuant to point (b) of Article 1 of this Regulation may, at the request of the interested party, be reduced if each of the following conditions are fulfilled:
(a) the certificates have been applied for before the date of entry into force of this Regulation;
(b) the validity of the certificates expires after the date of entry into force of this Regulation.
2. The certificate shall be reduced by the amount for which the interested party is unable to claim export refunds following the entry into force of the amendment provided for in point (b) of Article 1 as demonstrated to the satisfaction of the national competent authority.
In making their appraisal the competent authorities shall, in cases of doubt, have regard in particular to the commercial documents referred to in Article 1(2) of Regulation (EEC) No 4045/89.
3. The relevant security shall be released in proportion to the reduction concerned.
Article 3
1. For a request to be eligible for consideration under Article 2, the national competent authority must receive it by 7 March 2004, at the latest.
2. Member States shall notify the Commission not later than 14 March 2004 of the amounts for which reductions have been accepted in accordance with Article 2(2) of this Regulation. The notified amounts shall be taken into account for the determination of the amount for which refund certificates for use from 1 April 2004 are to be issued pursuant to point (d) of Article 8(1) of Regulation (EC) No 1520/2000.
Article 4
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
Point (a) of Article 1 shall apply from 1 January 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 February 2004. | [
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Commission Decision
of 18 April 2002
on the use of three slaughterhouses, in accordance with the provisions of Annex II(7) to Council Directive 92/119/EEC, by Italy
(notified under document number C(2002) 1451)
(Text with EEA relevance)
(2002/301/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 92/119/EEC of 17 December 1992 introducing general Community measures for the control of certain animal diseases and specific measures relating to swine vesicular disease(1), as last amended by the Act of Accession of Austria, Finland and Sweden, and in particular point 7(2)(d) of Annex II thereto,
Whereas:
(1) In March 2002 the Italian veterinary authorities declared outbreaks of swine vesicular disease in the municipalities of Moscufo and Atri in the Abruzzo region in Italy.
(2) In accordance with Article 10 of Directive 92/119//EC, protection zones were immediately established around the outbreaks sites.
(3) The movement or transport of pigs on public and private roads within the protection zones has been prohibited.
(4) Italy has submitted a request for making use of three slaughterhouses situated in the protection zone for the slaughtering of pigs coming from outside the said zone, in accordance with point 7(2)(d) of Annex II to Directive 92/119/EEC.
(5) The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
1. Italy is authorised to make use of the Salumificio di Leonardo, Mattatoi Comunale di Pineto and Mattatoio Comunale di Atri slaughterhouses located in the protection zones established in March 2002 around the outbreaks of swine vesicular disease occur in the municipalities of Moscufo and Atri in the Region Abruzzo, under the following conditions:
- the pigs shall proceed from holdings located outside the protection and surveillance zones established following the above outbreaks, and shall be directly transported to the slaughterhouses, without unloading or stopping,
- the access to the slaughterhouses shall be via corridors. The details of these corridors shall be laid down in the Italian legislation,
- when entering a corridor, vehicles carrying pigs for slaughter shall be sealed by the competent authorities. At the time of sealing, the authorities shall record the registration number of the vehicle and the number of pigs carried by the vehicle,
- on arrival at the slaughterhouse, the competent authorities shall:
(i) inspect and remove the seal of the vehicle;
(ii) record the registration number of the vehicle and the number of pigs on the vehicle.
2. Italy shall ensure that any vehicle carrying pigs to the slaughterhouses referred to in paragraph 1 undergoes cleaning and disinfection under official supervision immediately after unloading and that all appropriate precautions are taken to avoid the risk of re-contamination of the vehicle.
Article 2
This Decision is applicable until 15 May 2002.
Article 3
This Decision is addressed to the Italian Republic.
Done at Brussels, 18 April 2002. | [
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*****
COUNCIL REGULATION (ECSC, EEC, EURATOM) No 2339/88
of 25 July 1988
adjusting the rates laid down in Article 13 of Annex VII to the Staff Regulations of officials of the European Communities for the daily subsistance allowance for officials on mission
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing a single Council and a sigle Commission of the European Communities,
Having regard to the Staff Regulations of officials and the conditions of employment of other servants of the European Communities laid down in Regulation (EEC, Euratom, ECSC) No 259/68 (1), as last amended by Regulation (ECSC, Euratom, EEC) No 2338/88 (2) and in particular Article 13 (9) of Annex VII of the Staff Regulations and Articles 22 and 67 of the conditions of employment,
Having regard to the proposal from the Commission,
Whereas, in view of the increased costs recorded in the different places of employment in the Member States, the rates of daily subsistence allowance for officials on mission should be adjusted,
HAS ADOPTED THIS REGULATION:
Article 1
Article 13 of Annex VII to the Staff Regulations is hereby amended as follows:
1. The scale in paragraph 1 (a) is replaced by the following:
(in Belgian francs)
1.2.3.4 // // // // // // 'I // II // III // // Grades A 1 to A 3 and LA 3 // Grades A 4 to A 8, LA 4 to LA 8 and Category B // Other grades // // // // // Belgium // 2 485 // 3 625 // 3 355 // Denmark // 2 940 // 5 455 // 5 045 // Germany // 2 295 // 4 060 // 3 755 // Greece // 1 480 // 2 390 // 2 210 // Spain // 2 015 // 3 975 // 3 675 // France // 2 215 // 3 845 // 3 555 // Ireland // 2 400 // 4 480 // 4 145 // Italy // 2 355 // 4 535 // 4 195 // Luxembourg // 2 330 // 3 625 // 3 355 // Netherlands // 2 520 // 4 390 // 4 060 // Portugal // 1 680 // 3 260 // 3 015 // United Kingdom // 2 130 // 4 740 // 4 385' // // // //
2. The first sentence of paragraph 2 is replaced by the following:
'2. In addition to the rates set out in column I of the scale, the hotel bill covering room, service and taxes, but excluding breakfast shall be reimbursed up to the following maximum limits:
1.2 // // (in Belgian francs) // Belgium: // 2 700 // Denmark: // 4 960 // Germany: // 2 925 // Greece: // 2 120 // Spain: // 3 345 // France: // 3 105 // Ireland: // 4 000 // Italy: // 4 260 // Luxembourg: // 2 410 // Netherlands: // 3 660 // Portugal: // 3 155 // United Kingdom: // 3 490'.
Article 2
This Regulation shall enter into force on 1 August 1988.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 July 1988. | [
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COMMISSION REGULATION (EC) No 212/2007
of 28 February 2007
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables (1), and in particular Article 4(1) thereof,
Whereas:
(1)
Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2)
In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 1 March 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 February 2007. | [
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DIRECTIVE 98/4/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 16 February 1998 amending Directive 93/38/EEC coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community and in particular Articles 57(2), 66 and 100a thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the Economic and Social Committee (2),
Acting in accordance with the procedure laid down in Article 189b of the Treaty (3), in the light of the joint text approved by the Conciliation Committee on 26 November 1997,
(1) Whereas the Council, by its Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (4), approved on behalf of the Community, inter alia, the Agreement on Government Procurement, hereinafter referred to as 'the Agreement`, the purpose of which is to establish a multilateral framework of balanced rights and obligations with respect to government procurement with a view to achieving liberalisation and expansion of world trade; whereas the Agreement has no direct effect;
(2) Whereas Directive 93/38/EEC (5) coordinated the national procedures relating to the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, in order to introduce equal conditions of competition for such contracts in all the Member States;
(3) Whereas the contracting entities covered by the Agreement which comply with Directive 93/38/EEC, as amended by this Directive, and which apply the same provisions as regards contractors, suppliers and providers of services of third countries signatory to the Agreement are therefore in conformity with the Agreement;
(4) Whereas, in view of the international rights and commitments devolving on the Community as a result of the acceptance of the Agreement, the arrangements to be applied to tenderers and products from signatory third countries are those defined by the Agreement, the scope of which does not include contracts awarded by contracting entities referred to in Article 2(1)(b) of Directive 93/38/EEC, contracts awarded by contracting entities carrying out activities referred to in Annexes III, IV, V, VI and X of that Directive, service contracts listed in Annex XVI B thereto, R& D service contracts mentioned in Category 8 of Annex XVI A thereto, telecommunications service contracts mentioned in Category 5 of Annex XVI A thereto, whose Common Products Classification (CPC) numbers are 7524, 7525 and 7526 and financial service contracts mentioned in Category 6 of Annex XVI A thereto, in connection with the issue, sale, purchase or transfer of securities or other financial instruments, and central bank services;
(5) Whereas certain provisions of the Agreement introduce more favourable conditions for tenderers than those laid down in Directive 93/38/EEC;
(6) Whereas, when contracts are awarded by contracting entities within the meaning of the Agreement, the opportunities for access to public service, public supply and public works contracts available under the Treaty to undertakings and products from the Member States must be at least as favourable as the conditions of access to public contracts within the Community accorded under the arrangements contained in the Agreement to undertakings and products from third countries which are signatories to the Agreement;
(7) Whereas it is therefore necessary to adapt and supplement the provisions of Directive 93/38/EEC;
(8) Whereas the need to ensure a real opening-up of the market and a fair balance in the application of procurement rules in these sectors continues to require that the entities to be covered must be identified on a basis other than by reference to their legal status;
(9) Whereas the amendments made to Directive 93/38/EEC should not prejudice the equal treatment of contracting entities operating in the public sector and in the private sector;
(10) Whereas it must be ensured, in keeping with Article 222 of the Treaty, that the rules in Member States governing the system of property ownership are not to be prejudiced;
(11) Whereas the application of Directive 93/38/EEC must be simplified and the balance which has been reached in the current Community legislation in the field of public procurement in these sectors must be maintained as far as possible;
(12) Whereas it is therefore necessary to extend the applicability of certain of the adaptations of Directive 93/38/EEC to all the contracting entities and sectors covered by this Directive;
(13) Whereas contracting entities may seek or accept advice which may be used in the preparation of specifications for a specific procurement, provided that such advice does not have the effect of precluding competition;
(14) Whereas the Commission shall make available to small and medium-sized undertakings the training and information materials they need to enable them to participate fully in the changed procurement market;
(15) Whereas the opening-up of contracts in the sectors covered by this Directive might have adverse effects upon the economies of the Hellenic Republic and the Portuguese Republic, which will have to endure considerable strain; whereas it is appropriate that these member States be granted adequate additional periods to implement this Directive,
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Without prejudice to the international rights and commitments devolving on the Community as a result of the acceptance of the Agreement, which defines the arrangements to be applied to tenderers and products from third countries which are signatories to the Agreement, the current scope of which does not include contracts awarded by contracting entities referred to in Article 2(1)(b) of Directive 93/38/EEC, contracts awarded by contracting entities carrying out activities referred to in Annexes III, IV, V, VI and X of that Directive, service contracts listed in Annex XVI B thereto, development service contracts mentioned in Category 8 of Annex XVI A thereto, telecommunications service contracts mentioned in Category 5 of Annex XVI A thereto, whose Common Product Classification (CPC) numbers are 7524, 7525 and 7526, and financial service contracts mentioned in Category 6 of Annex XVI A thereto in connection with the issue, sale, purchase or transfer of securities or other financial instruments, and central bank services, Directive 93/38/EEC is hereby amended as follows:
1. in Article 14
(a) paragraph 1 shall be replaced by the following:
'1. This Directive shall apply to:
(a) contracts awarded by contracting entities carrying out activities referred to in Annex X (1), provided that the estimated value, net of value added tax (VAT), is not less than:
(i) ECU 600 000 in the case of supply and service contracts;
(ii) ECU 5 000 000 in the case of works contracts;
(b) contracts awarded by contracting entities carrying out activities referred to in Annexes I, II, VII, VIII and IX (2), provided that the estimated value, net of VAT, is not less than:
(i) the equivalent in ECU of 400 000 special drawing rights (SDR) for supply contracts and for the service contracts listed in Annex XVI A, except for the R& D services mentioned in Category 8 and Category 5 telecommunications services, the CPC reference numbers of which are 7524, 7525 and 7526;
(ii) ECU 400 000 in the case of service contracts other than those mentioned in (i);
(iii) the equivalent in ECU of 5 000 000 SDR for works contracts;
(c) contracts awarded by contracting entities carrying out activities referred to in Annexes III, IV, V, and VI (3), provided that the estimated value, net of VAT, is not less than:
(i) ECU 400 000 in the case of supply and service contracts;
(ii) ECU 5 000 000 in the case of works contracts.
(1) TABLE
(2) TABLE
(3) TABLE
`;
(b) the following paragraphs shall be added:
'14. The value in national currencies of the thresholds laid down specified in paragraph 1 shall, in principle, be revised every two years with effect from 1 January 1996. The calculation of such value shall be based on the average daily values of those currencies expressed in ecus over the 24 months terminating on the last day of August preceding the revision with effect from 1 January. These values shall be published in the Official Journal of the European Communities at the beginning of November.
15. The values of the thresholds of the Agreement on Government Procurement, concluded in the framework of the Uruguay Round multilateral negotiations (*), hereinafter referred to as the "Agreement", expressed in ecus shall in principle be revised every two years with effect from 1 January 1996. The calculation of these values shall be based on the average daily value of the ecu expressed in SDR over the 24 months terminating on the last day of August preceding the 1 January revision. These values shall be published as provided for in paragraph 14.
16. The methods of calculation laid down in paragraphs 14 and 15 shall be examined pursuant to the second subparagraph of Article 5(1)(c) of Directive 93/36/EEC.
(*) Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ No L 336, 23.12.1994, p. 1).`;
2. Article 21(2)(c) shall be replaced by the following:
'(c) contracting entities shall subsequently invite all candidates to confirm their interest on the basis of detailed information on the contract concerned before beginning the selection of tenderers or participants in negotiations. The information must include at least the following:
(i) the nature and quantity, including any options for further procurement and, if possible, an estimate of the timing when such options may be exercised; in the case of recurring contracts the nature and quantity and, if possible, an estimate of the timing of the subsequent calls for competition for the works, supplies or services to be procured;
(ii) whether the procedure is restricted or negotiated;
(iii) any date for starting or completing the delivery of supplies or for performing works or services;
(iv) the address and final date for submitting an application to be invited to tender, as well as the language or languages in which it must be submitted;
(v) the address of the entity awarding the contract and providing any information necessary for obtaining specifications and other documents;
(vi) any economic and technical requirements, financial guarantees and information required from suppliers, undertakings or providers of services;
(vii) the amount and terms of payment of any sum payable for the documentation relating to the procurement procedure; and
(viii) whether the entity is inviting offers for purchase, lease, rental or hire purchase, or more than one of these methods.`;
3. Article 22(1)(b) shall be replaced by the following:
'(b) in the case of works contracts, the essential characteristics of the works contracts which the contracting entities intend to award, the estimated value of which is not less than:
- the threshold laid down in Article 14(1)(a)(ii) as regards contracts intended to be awarded by entities carrying out an activity referred to in Annex X,
- the threshold laid down in Article 14(1)(b)(iii) as regards contracts intended to be awarded by entities carrying out an activity referred to in Annexes I, II, VII, VIII and IX, or
- the threshold laid down in Article 14(1)(c)(ii) as regards contracts intended to be awarded by entities carrying out an activity referred to in Annexes III, IV, V and VI.`;
4. Article 23(1) and (2) shall be replaced by the following:
'1. This Article shall apply to design contests organized as part of a procedure leading to the award of a service contract whose estimated value net of VAT for which is not less than:
- the threshold laid down in Article 14(1)(a)(i) as regards contracts intended to be awarded by entities carrying out an activity referred to in Annex X,
- the threshold laid down in Article 14(1)(b)(i) or (ii) as regards contracts intended to be awarded by entities carrying out an activity referred to in Annexes I, II, VII, VIII and IX, or
- the threshold laid down in Article 14(1)(c)(i) as regards contracts intended to be awarded by entities carrying out an activity referred to in Annexes III, IV, V and VI.
2. This Article shall apply to all design competitions where the total amount of competition prizes and payments to participants is not less than:
- the threshold laid down in Article 14(1)(a)(i) as regards contracts intended to be awarded by entities carrying out an activity referred to in Annex X,
- the threshold laid down in Article 14(1)(b)(i) or (ii) as regards contracts intended to be awarded by entities carrying out an activity referred to in Annexes I, II, VII, VIII and IX, or
- the threshold laid down in Article 14(1)(c)(i) as regards contracts intended to be awarded by entities carrying out an activity referred to in Annexes III, IV, V, and VI.`;
5. Article 24(2) shall be replaced by the following:
'2. Information provided under Section I of Annex XV or under Annex XVIII shall be published in the Official Journal of the European Communities. In this connection the Commission shall respect any sensitive commercial aspects which the contracting entities may point out when forwarding this information in connection with points 6, 9 and 11 of Annex XV.`;
6. Article 26 shall be replaced by the following:
'Article 26
1. In open procedures the time limit for the receipt of tenders shall be fixed by contracting entities at not less than 52 days from the date of dispatch of the notice. This time limit may be replaced by one which is sufficiently long to allow those concerned to submit valid tenders and which, as a general rule, shall not be less than 36 days and in any case not less than 22 days from the date on which the contract notice was dispatched, if the contracting entities have sent the Official Journal of the European Communities a periodic indicative notice in accordance with Article 22(1), provided that this notice contains the information required in Parts II and III of Annex XIV, insofar as that information is available at the time of publication of the notice referred to in Article 22(1).
This periodic indicative notice must furthermore have been dispatched to the Official Journal of the European Communities within a minimum of 52 days and a maximum of 12 months before the date on which the contract notice provided for in Article 21(1)(a) is dispatched to the Official Journal of the European Communities.
2. In restricted procedures and in negotiated procedures with a prior call for competition, the following shall apply:
(a) the time limit for receipt of requests to participate, in response to a notice published in accordance with Article 21(1)(a) or in response to an invitation from a contracting entity in accordance with Article 21(2)(c), shall, as a general rule, be at least 37 days from the date of dispatch of the notice or invitation and shall in any case not be less than the time limit for publication laid down in Article 25(3), plus 10 days;
(b) the time limit for receipt of tenders may be fixed by mutual agreement between the contracting entity and the selected candidates, provided that all tenderers are given equal time to prepare and submit tenders;
(c) where it is not possible to reach agreement on the time limit for the receipt of tenders, the contracting entity shall fix a time limit which shall, as a general rule, be at least 24 days and shall in any case not be less than 10 days from the date of the invitation to tender; the time allowed shall be sufficiently long to take account in particular of the factors mentioned in Article 28(3).`;
7. in Article 28:
(a) paragraph 5 shall be replaced by the following:
'5. Requests for participation in contracts and invitations to tender must be made by the most rapid means of communication possible. When requests to participate are made by telegram, telex, fax, telephone or any other electronic means, Member States may require them to be confirmed by letter dispatched before the expiry of the time limit referred to in Article 26(2).`;
(b) the following paragraph shall be added:
'6. Tenders shall be submitted in writing, directly or by mail. Member States may authorise the submission of tenders by any other means making it possible to ensure:
- that each tender contains all the information necessary for its evaluation,
- that the confidentiality of tenders is maintained pending their evaluation,
- that, where necessary for reasons of legal proof, such tenders are confirmed as soon as possible in writing or by dispatch of a certified copy,
- that tenders are opened after the time-limit for their submission has expired.`;
8. Article 30(1) shall be replaced by the following:
'1. Contracting entities which so wish may establish and operate a system of qualification of suppliers, contractors or service providers.
Entities establishing or operating a qualification system shall ensure that suppliers, contractors and service providers may apply for qualification at any time.`;
9. Article 35(1) shall be replaced by the following:
'1. Article 34(1) shall not apply where a Member State bases the award of contracts on other criteria, within the framework of rules in force at the time of adoption of this Directive, which are intended to give preference to certain tenderers, provided that the rules invoked are compatible with the Treaty.`;
10. Article 38 shall be repealed;
11. Article 41 shall be replaced by the following:
'Article 41
1. Contracting entities shall keep appropriate information on each contract which shall be sufficient to permit them at a later date to justify decisions taken in connection with:
(a) the qualification and selection of contractors, suppliers or service providers and award of contracts;
(b) recourse to derogations from the use of European specifications in accordance with Article 18(6);
(c) use of procedures without prior call for competition in accordance with Article 20(2);
(d) non-application of Titles II, III and IV in accordance with the derogations provided for in Title I.
2. The information shall be kept for at least four years from the date of award of the contract so that the contracting entity will be able, during that period, to supply the necessary information to the Commission if the latter so requests.
3. Entities carrying out one of the activities mentioned in Annexes I, II, VII, VIII and IX shall inform participating suppliers, contractors or service providers of decisions on contract awards promptly and, upon request, in writing.
4. The contracting entities carrying out one of the activities mentioned in Annexes I, II, VII, VIII and IX shall, promptly after the date on which a written request is received, inform any eliminated candidate or tenderer of the reasons for rejection of his application or his tender and any tenderer who has made an admissible tender of the characteristics and relative advantages of the tender selected as well as the name of the successful tenderer.
However, contracting entities may decide that certain information on the contract award, referred to in the first subparagraph of this paragraph, be withheld where release of such information would impede law enforcement or otherwise be contrary to the public interest or would prejudice the legitimate commercial interests of particular enterprises, public or private, including those of the enterprise to which the contract has been awarded, or might prejudice fair competition between suppliers, contractors or service providers.`;
12. the following paragraphs shall be inserted in Article 42:
'1a. With respect to the activities to which Annexes I, II, VII, VIII and IX refer, Member States shall, in accordance with the arrangements to be laid down under the procedure provided for in Article 40(4) to (8), ensure that, by 31 October 1997 at the latest for the preceding year and thereafter by 31 October of every year, the Commission receives a statistical report on the contracts awarded. This report shall contain the information necessary to verify the proper application of the Agreement.
The information required under this paragraph shall not include information concerning contracts for the services listed in category 8 of Annex XVI A, telecommunications services listed in category 5, the CPC reference numbers of which are 7524, 7525 and 7526, or the services listed in Annex XVI.B.`;
13. the following Article shall be inserted:
'Article 42a
For the purposes of the award of contracts by the contracting entities, Member States shall apply in their relations conditions as favourable as those which they grant to third countries in implementation of the Agreement. The Member States shall to this end consult each other within the Advisory Committee for Public Contracts on the measures to be taken pursuant to the Agreement.`;
14. Annexes XII, XIII, XIV and XV shall be replaced by the corresponding texts appearing in Annex to this Directive.
Article 2
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 16 February 1999. They shall forthwith inform the Commission thereof.
2. However, the Hellenic Republic and the Portuguese Republic may provide that the provisions referred to in paragraph 1 shall apply not later than 16 February 2000.
3. When Member States adopt the provisions referred to in paragraph 1, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.
4. Member States shall communicate to the Commission the main provisions of national law which they adopt in the field covered by this Directive together with a correlation table between this Directive and the national measures adopted.
Article 3
This Directive is addressed to the Member States.
Done at Brussels, 16 February 1998. | [
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COMMISSION DECISION of 20 December 1994 approving the programme for the eradication and surveillance of rabies for 1995 presented by Belgium and fixing the level of the Community's financial contribution (Only the French and Dutch texts are authentic) (94/869/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Decision 90/424/EEC of 26 June 1990 on expenditure in the veterinary field (1), as last amended by Decision 94/370/EC (2), and in particular Article 24 thereof,
Whereas Decision 90/424/EEC provides for the possibility of financial participation by the Community in the eradication and surveillance of rabies;
Whereas by letter dated 20 July 1994, Belgium has submitted a programme for the eradication of rabies;
Whereas after examination of the programme it was found to comply with all Community criteria relating to the eradication of the disease in conformity with Council Decision 90/638/EEC on laying down Community criteria for the eradication and monitoring of certain animal diseases (3), as last amended by Directive 92/65/EEC (4);
Whereas this programme appears on the priority list of programmes for the eradication and surveillance of animal diseases which can benefit from financial participation from the Community and which was established by Commission Decision 94/769/EC (5);
Whereas in the light of the importance of the programme for the achievement of Community objectives in the field of animal health, it is appropriate to fix the financial participation of the Community at 50 % of the costs incurred by Belgium up to a maximum of ECU 75 500;
Whereas a financial contribution from the Community shall be granted in so far as the actions provided for are carried out and provided that the authorities furnish all the necessary information within the time limits provided for;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
The programme for the eradication of rabies presented by Belgium is hereby approved for the period from 1 January to 31 December 1995.
Article 2
Belgium shall bring into force by 1 January 1995 the laws, regulations and administrative provisions for implementing the programme referred to in Article 1.
Article 3
1. Financial participation by the Community shall be at the rate of 50 % of the costs of implementing the programme in Belgium up to a maximum of ECU 75 500.
2. The financial contribution of the Community shall be granted subject to:
- forwarding a report to the Commission every three months on the progress of the programme and the costs incurred,
- forwarding a final report on the technical execution of the programme accompanied by justifying evidence as to the costs incurred by 1 June 1996 at the latest.
Article 4
This Decision is addressed to the Kingdom of Belgium.
Done at Brussels, 20 December 1994. | [
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Commission Regulation (EC) No 1460/2003
of 18 August 2003
setting for the 2003/2004 to 2005/2006 marketing years rules of application for Council Regulation (EC) No 1260/2001 as regards the presumed maximum raw sugar supply needs of refineries
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector(1), as amended by Commission Regulation (EC) No 680/2002(2), and in particular Article 39(6) and the second paragraph of Article 41 thereof,
Whereas:
(1) Article 39 of Regulation (EC) No 1260/2001 contains provisions on adequacy of supply to Community refineries as defined in the fourth subparagraph of Article 7(4) of that Regulation; these include the measures applicable when the presumed maximum needs of refineries are exceeded.
(2) So that the provisions relating to the presumed maximum needs set in Article 39(2) of Regulation (EC) No 1260/2001 can be respected it is necessary to stipulate the action to be taken by Member States to record the relevant data and send it to the Commission.
(3) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sugar,
HAS ADOPTED THIS REGULATION:
Article 1
1. For the purposes of application of the penalty stipulated in Article 39(4) of Regulation (EC) No 1260/2001 the excess on presumed maximum needs means the total of the quantities of:
(a) ACP-India preferential raw sugar imported under Title II of Commission Regulation (EC) No 1159/2003(3);
(b) special preferential sugar imported under Title III of Regulation (EC) No 1159/2003;
(c) CXL concessions sugar imported under Title IV of Regulation (EC) No 1159/2003;
(d) raw sugar obtained in the French Overseas Departments;
(e) raw sugar of the tariff quotas opened for the least developed countries under Commission Regulation (EC) No 1381/2002(4);
(f) any raw beet sugar for which use has been made of Article 38(5) of Regulation (EC) No 1260/2001;
that are actually refined in excess of the presumed maximum needs set in Article 39(2) of Regulation (EC) No 1260/2001 or as reduced under paragraph 5 of that Article.
2. The Member States indicated in Article 39(2) of Regulation (EC) No 1260/2001 shall before 1 November of each marketing year record converting into white sugar equivalent the quantities of raw sugar indicated in paragraph 1, the quantities of sugar refined in connection with the previous marketing year by the refineries indicated in Article 7(4) of Regulation (EC) No 1260/2001.
The above conversion shall be made as specified at Point II.3 of Annex I to Regulation (EC) No 1260/2001 and, on the basis of the actual polarisation of the raw sugar, verified as necessary by the national authorities using the polarimetric method with the degree expressed to six decimal places.
Article 2
1. Before 1 December of each marketing year the Member States indicated in Article 39(2) of Regulation (EC) No 1260/2001 shall notify to the Commission:
(a) the quantities of sugar as indicated in Article 1(1) above that were actually refined in connection with the previous marketing year, expressed by weight of sugar in the natural state and as white sugar equivalent in line with Article 1(2) above;
(b) any quantities for which the penalty specified in Article 39(4) of Regulation (EC) No 1260/2001 was applied.
2. The notifications indicated in paragraph 1 shall be made electronically using the forms sent by the Commission to the Member States for that purpose.
Article 3
The Regulation shall enter into force on the third day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 August 2003. | [
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COMMISSION REGULATION (EC) No 1442/2006
of 29 September 2006
fixing the import duties in the cereals sector applicable from 1 October 2006
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organisation of the market in cereals (1),
Having regard to Commission Regulation (EC) No 1249/96 of 28 June 1996 laying down detailed rules for the application of Council Regulation (EEC) No 1766/92 as regards import duties in the cereals sector (2), and in particular Article 2(1) thereof,
Whereas:
(1)
Article 10 of Regulation (EC) No 1784/2003 provides that the rates of duty in the Common Customs Tariff are to be charged on import of the products referred to in Article 1 of that Regulation. However, in the case of the products referred to in paragraph 2 of that Article, the import duty is to be equal to the intervention price valid for such products on importation and increased by 55 %, minus the cif import price applicable to the consignment in question. However, that duty may not exceed the rate of duty in the Common Customs Tariff.
(2)
Pursuant to Article 10(3) of Regulation (EC) No 1784/2003, the cif import prices are calculated on the basis of the representative prices for the product in question on the world market.
(3)
Regulation (EC) No 1249/96 lays down detailed rules for the application of Regulation (EC) No 1784/2003 as regards import duties in the cereals sector.
(4)
The import duties are applicable until new duties are fixed and enter into force.
(5)
In order to allow the import duty system to function normally, the representative market rates recorded during a reference period should be used for calculating the duties.
(6)
Application of Regulation (EC) No 1249/96 results in import duties being fixed as set out in Annex I to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The import duties in the cereals sector referred to in Article 10(2) of Regulation (EC) No 1784/2003 shall be those fixed in Annex I to this Regulation on the basis of the information given in Annex II.
Article 2
This Regulation shall enter into force on 1 October 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 September 2006. | [
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COMMISSION REGULATION (EC) No 988/2004
of 17 May 2004
imposing provisional anti-dumping duties on imports of okoumé plywood originating in the People's Republic of China
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (1) (‘basic Regulation’), as last amended by Regulation (EC) No 461/2004 (2), and in particular Article 7 thereof,
After consulting the Advisory Committee,
Whereas:
A. PROCEDURE
1. INITIATION
(1)
On 19 August 2003, the Commission announced by a notice (‘notice of initiation’) published in the Official Journal of the European Union (3), the initiation of an anti-dumping proceeding with regard to imports into the Community of okoumé plywood originating in the People’s Republic of China (‘PRC’).
(2)
The anti-dumping proceeding was initiated following a complaint lodged on 7 July 2003 by the European Federation of the Plywood Industry (FEIC) (‘the complainant’) on behalf of producers representing a major proportion, in this case more than 50 %, of the Community production of okoumé plywood. The complaint contained evidence of dumping of the said product and of material injury resulting there from, which was considered sufficient to justify the initiation of a proceeding.
2. PARTIES CONCERNED BY THE PROCEEDING
(3)
The Commission officially advised the exporting producers in the PRC, importers/traders and their associations, suppliers and users known to be concerned, the representatives of the exporting country concerned and the complainant Community producers of the initiation of the proceeding. Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set in the notice of initiation.
(4)
In view of the large number of Chinese exporting producers listed in the complaint, and the large number of Community producers of the like product, sampling was envisaged in the notice of initiation for the determination of dumping and injury, in accordance with Article 17 of the basic Regulation.
(5)
In order to enable the Commission to decide whether sampling would be necessary and, if so, to select a sample, all exporting producers and Community producers were asked to make themselves known to the Commission and to provide, as specified in the notice of initiation, basic information on their activities related to the product concerned during the investigation period (1 July 2002 to 30 June 2003).
(6)
After examination of the information submitted by exporting producers and due to the low number of replies to the sampling questions, it was decided that sampling was not necessary with regard to exporters.
(7)
With regard to the Community producers, the Commission selected, in accordance with Article 17 of the basic Regulation, a sample based on the largest representative volume of production and sales of the Community industry which could be reasonably investigated within the time available. On the basis of the replies received from the Community producers, the Commission selected five companies in three Member States. The selection was based on both production and sales volume. The sample chosen on the basis of the aforementioned criteria is also representative in terms of geographic coverage.
(8)
In order to allow exporting producers in the PRC to submit a claim for market economy treatment (‘MET’) or individual treatment (‘IT’), if they so wished, the Commission sent claim forms to the Chinese exporting producers known to be concerned. Claims for MET, or for IT in case the investigation establishes that they do not meet the conditions for MET, were received from eight exporting producers.
(9)
The Commission sent questionnaires to all parties known to be concerned and to all the other companies that made themselves known within the deadlines set out in the notice of initiation. Replies were received from six Chinese exporting producers, from the five sampled Community producers, and from one producer in the analogue country, Morocco.
(10)
The Commission sought and verified all the information it deemed necessary for the purpose of a preliminary determination of dumping, resulting injury and Community interest. Verification visits were carried out at the premises of the following companies:
(a)
Community producers
-
Indústrias Jomar - Madeiras e Derivados SA, Portugal;
-
Joubert SAS, France;
-
Plysorol SAS, France;
-
Reni Ettore spa., Italy;
-
Schauman Wood SA, France
(b)
Exporting producers in the People’s Republic of China
-
Zhejiang Deren Bamboo-Wood Technologies Co., Ltd.
-
Jiaxing Jinlin Lumber Co., Ltd.
-
Nantong Zongyi Plywood Co., Ltd.
-
Zhonglin Enterprise (Dangshan) Co., Ltd.
(c)
Producer in the analogue country
(11)
In view of the need to establish a normal value for exporting producers in the PRC to which MET might not be granted, a verification visit to establish normal value on the basis of data from an analogue country, Morocco, took place at the premises of the following company:
-
CEMA Bois de l’Atlas, Casablanca, Morocco.
3. INVESTIGATION PERIOD
(12)
The investigation of dumping and injury covered the period from 1 July 2002 to 30 June 2003 (‘investigation period’ or ‘IP’). The examination of trends in the context of the injury analysis covered the period from 1 January 1999 to the end of the IP (‘period under consideration’).
B. PRODUCT CONCERNED AND LIKE PRODUCT
1. GENERAL
(13)
Plywood is a wood based panel, which has at the same time good mechanical strength and a light weight. It consists of sheets (plies) of wood veneer, which are glued together. It is constructed with an odd number of plies, which are cross-bonded. The outer plies usually have the grain direction going parallel to the long dimension of the panel. This construction guarantees the strength and stability of plywood.
(14)
Plywood can be made of different species of wood. The main wood species used for the production of European plywood are beech, birch, spruce, poplar and okoumé.
(15)
Okoumé wood only grows in Gabon, Equatorial Guinea and Cameroon, and has therefore to be imported by European as well as Chinese plywood manufacturers. Okoumé gives the plywood an excellent, smooth surface quality, and also good mechanical properties mainly due to the absence of knots. Okoumé plywood has therefore specific features relating to its appearance and to its mechanical properties, which means that the product can be distinguished from other types of plywood.
(16)
Okoumé plywood has a large range of end-uses. It is used in the building industry in exterior joinery and carpentry applications for boarding, shutter boards, exterior basements and balustrades and riverside panelling. It is also used for more decorative purposes in, inter alia, road transports (e.g. cars, coaches, caravans, camping cars), maritime transports (yachts), furniture industry and doors.
(17)
There are two types of okoumé plywood, plywood made solely with okoumé (‘full okoumé’) and plywood with at least one of the outer faces made of okoumé (‘faced okoumé’), the rest being made of other wood. Both okoumé plywoods have the same external appearance. Despite differences in mechanical properties, they all share the same basic physical characteristics, and are basically used for the same purposes.
2. PRODUCT CONCERNED
(18)
The product concerned is plywood consisting solely of sheets of wood, each ply not exceeding 6 mm thickness, with at least one outer ply of okoumé, originating in the PRC, currently classifiable within CN code ex 4412 13 10. This definition covers full okoumé and faced okoumé as defined above.
(19)
During the verification visit, it was found that one company exported film faced okoumé plywood to the Community during the IP. This product is faced okoumé (with layers of other wood inside) covered by a plastic film. It was considered that this product was not the product concerned, as it did not consist only of sheets of wood and does not present the same external appearance as other okoumé plywood. It therefore did not share the same physical and technical characteristics. It is consequently not covered by the present proceeding.
3. LIKE PRODUCT
(20)
The product concerned and the okoumé plywood manufactured in the PRC and sold domestically, the product produced and sold on the domestic market of the analogue country (Morocco) as well as the one manufactured and sold in the Community by the Community industry were found to have basically the same physical and technical characteristics and the same uses. Therefore, these products are provisionally considered to be alike within the meaning of Article 1(4) of the basic Regulation.
C. DUMPING
1. MARKET ECONOMY TREATMENT (MET)
(21)
Pursuant to Article 2(7)(b) of the basic Regulation, in anti-dumping investigations concerning imports originating in the PRC, normal value shall be determined in accordance with paragraphs 1 to 6 of the said Article for those producers which were found to meet the criteria laid down in Article 2(7)(c) of the basic Regulation.
(22)
Briefly, and for ease of reference only, these criteria, fulfilment of which the applicant companies have to demonstrate, are set out in summarised form below:
(1)
business decisions and costs are made in response to market conditions, and without significant State interference;
(2)
accounting records are independently audited in line with international accounting standards and applied for all purposes;
(3)
there are no significant distortions carried over from the former non-market economy system;
(4)
legal certainty and stability are provided by bankruptcy and property laws;
(5)
currency exchanges are carried out at the market rate.
(23)
Eight exporting producers in the PRC requested MET pursuant to Article 2(7)(b) of the basic Regulation and replied to the MET claim form for exporting producers.
(24)
The application of one company (company 2 in table below) was rejected on the basis of a first analysis of the reply to the MET claim form which failed to show that all the criteria were met. The application of another company (company 4 in table below) was rejected because it withdrew its co-operation before the verification visit took place. It was therefore not possible to verify whether the company fulfilled the criteria set in Article 2(7)(c) of the basic Regulation.
(25)
For the six remaining companies, the Commission sought and verified at the premises of these companies all information submitted in the MET applications and deemed necessary.
(26)
The investigation showed that four of the six companies mentioned above fulfilled all the criteria required and they were therefore granted MET. These four exporting producers in the PRC which were granted MET are:
-
Zhejiang Deren Bamboo-Wood Technologies Co., Ltd.
-
Jiaxing Jinlin Lumber Co., Ltd.
-
Nantong Zongyi Plywood Co., Ltd.
-
Zhonglin Enterprise (Dangshan) Co., Ltd.
(27)
The remaining two claims had to be rejected. The following table summarizes the determination for the four companies for which MET was not granted against each of the five criteria as set out in Article 2(7)(c) of the basic Regulation.
Company
Criteria
Article 2(7)(c) indent 1
Article 2(7)(c) indent 2
Article 2(7)(c) indent 3
Article 2(7)(c) indent 4
Article 2(7)(c) indent 5
1
Not met
Not met
Not met
Not met
Met
2
Not met
3
Non co-operation
4
Non co-operation
Source: Verified questionnaire replies of co-operating Chinese exporters
(28)
The companies concerned were given an opportunity to comment on the above findings. Two companies submitted that the determination was wrong and that they should be granted MET.
(29)
Concerning the first criterion, company 1 submitted that, contrary to the Commission’s conclusions, the source of the paid-in capital was clear and the domestic sales were made at market prices. However the company was unable to provide further evidence to rebut the Commission’s conclusions. As far as the domestic sales are concerned, it was shown that the pricing policy of the company was not in accordance with market economy principles, as okoumé plywood with higher quality was sold at the same price as plain plywood. Therefore, these two claims were rejected.
(30)
The same company claimed that its accounts were audited independently and in line with international standards. However, the verification visit showed that the auditors had not made the comments demanded by international standards (mainly different balance sheets for the same year without further explanation and loss of almost all of the paid-in capital without any comment). Since these problems seriously put into question the reliability of the accounts, they could not be considered to be audited in line with international standards. Therefore, this claim was also rejected.
(31)
Company 1 also claimed that there was no State intervention or distortions carried over from the non-market economy system. However, payments for land use rights, which were due to the local authorities, remained unpaid for several years without explanation. Therefore, State or local government interference cannot be excluded and the company could not demonstrate that it is free from State interference. This claim was therefore rejected.
(32)
Finally, company 1 claimed that it benefited from legal certainty and stability provided by bankruptcy and property laws. However, it was noted during the verification visit that in a certain financial year the losses were higher than the capital. Therefore, it was found that, whilst the company may in theory be subject to the bankruptcy laws, these de facto did not apply to it, since under those circumstances a proceeding for bankruptcy should have been launched. It is worth noting that the auditors made also no comments in this respect. Hence, the company failed to demonstrate that it operates under a legal framework which guarantees legal certainty. Therefore, this claim was rejected.
(33)
Company 3 argued that it had co-operated with the Commission. This company had two related companies that produced the product concerned and exported it to the Community during the IP. However, neither of these two companies made itself known within the deadlines set in the notice of initiation of the proceeding. Therefore they were considered as non-cooperating exporting producers.
(34)
It is the Commission's consistent practice to examine whether a group of related companies as a whole fulfils the conditions for MET, which means that each related company producing and/or selling the product concerned should fulfil the MET criteria. Taking into account the non co-operation of the related companies in this case, it was not possible to establish that the group as a whole fulfilled the MET criteria, and therefore company 3 could not be granted MET.
(35)
The Community industry was given the opportunity to comment, but no objections were raised. The Advisory Committee was consulted and did not object to the Commission’s conclusions.
2. INDIVIDUAL TREATMENT (IT)
(36)
Further to Article 2(7)(a) of the basic Regulation, a country-wide duty, if any, is established for countries falling under Article 2(7) of the basic Regulation, except in those cases where companies are able to demonstrate, in accordance with Article 9(5) of the basic Regulation, that their export prices and quantities, as well as the conditions and terms of the sales are freely determined, that exchange rate conversions are carried out at market rates, and that any State interference is not such as to permit circumvention of measures if exporters are given different rates of duty.
(37)
The eight exporting producers, as well as requesting MET, also claimed individual treatment in the event of not being granted MET. However, none of the companies for which MET was rejected could be granted IT.
(38)
Indeed, for the two companies that did not co-operate, IT could not be granted, as it could not be verified whether they fulfilled the criteria set out in Article 9(5) of the basic Regulation.
(39)
The on-spot investigation showed that the accounting and export documents of company 1 were unreliable and presented serious deficiencies. In view of the considerable degree of uncertainty with regard to this company, it was considered impracticable to establish an individual dumping margin. Indeed, the export sales being unreliable, the calculation of an individual margin is de facto not possible since the export data from the company cannot be used. Moreover, since the company could not provide any assurance that measures would not be circumvented should this exporter be granted an individual margin, an individual margin would not be warranted in this case. Therefore, IT was not granted to this company.
(40)
Finally, company 2, which is State owned, could not demonstrate that State interference would not lead to circumvention of measures if exporters were given different rates of duty.
3. NORMAL VALUE
3.1. Determination of normal value for co-operating exporting producers granted MET
(41)
In accordance with Article 2(2) of the basic Regulation, the Commission first examined for each co-operating exporting producer whether its domestic sales of okoumé plywood were representative, i.e. whether the total volume of such sales represented at least 5 % of the total export sales volume of the producer to the Community. The investigation showed that domestic sales were representative for only two of the four exporting producers.
(42)
The Commission subsequently identified those types of okoumé plywood sold domestically by the companies having overall representative domestic sales and that were identical or directly comparable with the types sold for export to the Community.
(43)
For each type sold by the exporting producers on their domestic markets and found to be directly comparable with the type of okoumé plywood sold for export to the Community, it was established whether domestic sales were sufficiently representative for the purposes of Article 2(2) of the basic Regulation. Domestic sales of a particular type of okoumé plywood were considered sufficiently representative when the total domestic sales volume of that type during the IP represented 5 % or more of the total sales volume of the comparable type of okoumé plywood exported to the Community. For one of the two companies with representative domestic sales, four product types fulfilled this condition, whereas for the other company no product type was found to be sufficiently representative.
(44)
The Commission subsequently examined whether the four product types identified above could be considered as being sold in the ordinary course of trade, by establishing the proportion of profitable sales to independent customers of the okoumé plywood type in question. In cases where the sales volume of the okoumé plywood type, sold at a net sales price equal to or above the calculated cost of production, represented more than 80 % of the total sales volume of that type, and where the weighted average price of that type was equal to or above the cost of production, normal value was based on the actual domestic price, calculated as a weighted average of the prices of all domestic sales of that type made during the IP, irrespective of whether these sales were profitable or not. In cases where the volume of profitable sales of the okoumé plywood type represented 80 % or less of the total sales volume of that type, or where the weighted average price of that type was below the cost of production, normal value was based on the actual domestic price, calculated as a weighted average of profitable sales of that type only, provided that these sales represented 10 % or more of the total sales volume of that type. Only for one product type could the domestic prices be used to determine the normal value. For the remaining three product types, less than 10 % of the domestic sales of these product types were profitable during the IP.
(45)
In cases where the volume of profitable sales of any product type represented less than 10 % of the total sales volume of that type, it was considered that this particular type was sold in insufficient quantities for the domestic price to provide an appropriate basis for the establishment of the normal value. Wherever domestic prices of a particular product type sold by an exporting producer could not be used in order to establish normal value, another method had to be applied. In this regard, the Commission used constructed normal value, in accordance with Article 2(3) of the basic Regulation.
(46)
In accordance with Article 2(3) of the basic Regulation, normal value was constructed on the basis of each exporting producer’s own cost of manufacturing plus a reasonable amount for selling, general and administrative (‘SG&A’) costs and for profit. The Commission was able to use the own SG&A costs of two companies for which the domestic sales of the like product were representative as defined in Article 2(2) of the basic Regulation. For the profit margin, in accordance with the first sentence of Article 2(6) of the basic Regulation, the profit in the ordinary course of trade of each of the above-mentioned two companies was used.
(47)
For the two companies without representative domestic sales, the weighted average of the SG&A costs and profit of the two companies with representative domestic sales could be used in accordance with Article 2(6)(a) of the basic Regulation.
(48)
For one of the companies, the Commission was unable to establish with a reasonable degree of certainty that the cost allocation declared in the questionnaire reply reasonably reflected the costs associated with the production and sales of the product concerned. The company was given the possibility to comment on this during the verification visit, but it was unable to clarify the inconsistencies concerning the allocation of costs. Therefore, and in accordance with the provisions of Article 2(5) of the basic Regulation, the allocation of costs was made on a turnover basis when determining the cost of manufacturing.
(49)
One company purchased poplar veneers from local producers. These producers are not registered as VAT payers, and therefore do not pay VAT. The company, however, reduced the cost of the veneers by 13 % VAT. This was argued to be in accordance with the VAT authorities. However, as the company could not show that the reimbursement of VAT effectively took place, it was considered that this alleged reduction of VAT should be rejected, as the costs that should be taken into account should be the costs actually incurred.
(50)
One company suggested that the Commission should take into account the cost of production over a longer period than the IP. The company claimed that this would better reflect the real costs incurred given the existence of certain corrections in the accounts and a low production volume. As the company was unable to show any evidence of these alleged corrections, the Commission used the data for the IP provided by the company.
(51)
One company purchased veneers from a related company. Since the transfer prices of these transactions did not reasonably reflect the costs associated with the production of these veneers, they had to be replaced with a non-related transaction price, which was set at the price of other transactions of the company with unrelated suppliers.
3.2. Determination of normal value for all exporting producers not granted MET
3.2.1. Analogue country
(52)
Pursuant to Article 2(7)(a) of the basic Regulation, normal value for the exporting producers not granted market economy treatment has to be established on the basis of the prices or constructed value of the analogue country.
(53)
In the notice of initiation of this proceeding, Morocco was envisaged as an appropriate market economy third country for the purpose of establishing normal value for the PRC and interested parties were invited to comment on this. Three exporting producers contested this choice within the deadlines and proposed Brazil and Indonesia as analogue countries.
(54)
In order to establish whether the envisaged choice of Morocco as analogue country was appropriate, the Commission first contacted all known producers of okoumé plywood outside the European Community and the PRC, namely in Morocco, Brazil and Indonesia. However, only one Moroccan company co-operated in the proceeding and its data were verified.
(55)
The investigation then showed that other countries, namely Malaysia and Turkey, could also have producers of okoumé plywood. The known producers in these countries were contacted, and only one Turkish company accepted to cooperate in the proceeding. However, given the statutory deadlines for reaching a provisional determination, and given that the data from the Turkish producer were provided at a late stage and the analysis is not yet completed, the Commission decided to use Morocco as an appropriate analogue country in the framework of this provisional determination.
(56)
Three exporting producers opposed this proposal with the main arguments that the cost structure of the Moroccan producer was not similar to the cost structure of the Chinese producers, and that the Moroccan market lacked internal competition.
(57)
In this respect, the investigation has provisionally confirmed that there is only one Moroccan producer on the domestic market and that a high customs duty exists. However the Moroccan producer’s sales were deemed substantial and sufficiently representative in comparison to the volume of Chinese exports of the product concerned originating in the PRC to the Community during the IP. Therefore, the arguments made were not considered to be as such sufficient to prevent the Commission from calculating a reasonable provisional normal value, duly adjusted by taking into account the customs duty. Should it be found in the further course of the investigation, on the basis of the on-going analysis of the data provided by the Turkish company that Turkey is more suitable as an analogue country, these new elements will be duly considered.
3.2.2. Determination of normal value in the analogue country
(58)
In order to establish whether sales on the Moroccan market of the products comparable with those sold by the Chinese exporting producers to the Community were made in the ordinary course of trade, the domestic selling price was compared to the full cost of production (i.e. the cost of manufacturing plus SG&A expenses). Since the large majority of the sales volume of the types sold on the domestic market were sold at a loss and since the weighted average cost of production was higher than the weighted average selling price, normal value had to be constructed.
(59)
In accordance with Article 2(3) of the basic Regulation, normal value was constructed on the basis of the producer’s own cost of manufacturing plus a reasonable amount for selling, general and administrative (‘SG&A’) costs and for profit. It was possible to use its own SG&A costs as the domestic sales of the like product were representative. For the profit, it was decided to provisionally use a reasonable profit margin reflecting the average company’s global profit margin, in accordance with Article 2(6)(c) of the basic Regulation.
4. EXPORT PRICE
(60)
The export prices for the co-operating exporting producers were established on the basis of the prices paid or payable for the product concerned when sold for consumption in the Community to the first independent customer in accordance with Article 2(8) of the basic Regulation.
(61)
For the non-cooperating producers, the export prices were established in accordance with Article 18 of the basic Regulation. Export prices were therefore calculated on the basis of the lowest verified export price of the co-operating exporting producer for which MET and IT were not granted.
5. COMPARISON
(62)
For the purposes of ensuring a fair comparison between the normal value and the export price at an ex-works level and at the same level of trade, due allowance in the form of adjustments was made for differences that were claimed and demonstrated to affect prices and price comparability in accordance with Article 2(10) of the basic Regulation. Adjustments were made in respect of transport, insurance and handling, packing and credit costs, bank charges and commissions where applicable and justified.
(63)
It was found that one company made all its export sales through a Chinese trader. This trader was in charge of customer relations, finding new orders, invoicing to the final customer, and even, through a second company, forwarding the VAT reimbursement for exports to the producer. In return the trader received a commission on sales, and a discount on the purchase of a certain quantity of products. It was considered that this latter discount could be allocated only to export sales. The total amount of the discount was therefore allocated on the basis of the export turnover during the IP and the amount corresponding to the EC sales of the product concerned was taken into account when calculating the export prices of the company.
(64)
When Chinese companies export the product concerned they are entitled to a VAT reimbursement of 13 % of the turnover on an FOB basis. However, the VAT that the companies have to charge on their accounts is 17 % of the turnover on an FOB basis. An allowance to reflect this difference of 4 % was therefore taken into account when calculating the export price.
6. DUMPING MARGIN
6.1. For the co-operating exporting producers granted MET
(65)
In accordance with Article 2(11) and 2(12) of the basic Regulation, the dumping margin was established on the basis of a comparison of the weighted average normal value with the weighted average export prices per product type, as determined above.
(66)
The provisional dumping margins expressed as a percentage of the CIF Community frontier price duty unpaid are:
Company
Provisional dumping margin
Zhejiang Deren Bamboo-Wood Technologies Co., Ltd.
23,9 %
Jiaxing Jinlin Lumber Co., Ltd.
18,5 %
Nantong Zongyi Plywood Co., Ltd.
12,0 %
Zhonglin Enterprise (Dangshan) Co., Ltd.
8,5 %
6.2. For all other exporting producers
(67)
In order to calculate the country-wide dumping margin applicable to all other exporters in the PRC, the Commission first established the level of co-operation. A comparison was made between the data available, mainly the complaint, and the actual questionnaire replies received from the exporters in the PRC. This comparison showed that the level of cooperation was extremely low (20 %).
(68)
The dumping margin was calculated by comparing the weighted average normal value established for the analogue country and the weighted average export price estimated on the basis of the facts available described above under ‘export price’.
(69)
On this basis, the country-wide level of dumping was provisionally established at 48,5 % of the CIF Community frontier price duty unpaid.
D. COMMUNITY INDUSTRY
1. COMMUNITY PRODUCTION
(70)
Within the Community, the product concerned is known to be manufactured in France, Italy, Portugal, Greece, Spain and Germany, as follows:
-
Ten producers on behalf of which the complaint was lodged; the five which were selected in the sample (‘the sampled Community producers’), representing 57 % of the Community production, were also complainants;
-
One producer which supported the proceeding and provided some general information;
-
Other Community producers which were not complainants and did not co-operate, but did not oppose the present proceeding.
(71)
The Commission has found that all the above companies could be considered as Community producers within the meaning of Article 4(1) of the basic Regulation. The output of all the above companies constitutes the Community production.
2. COMMUNITY INDUSTRY
(72)
The accumulated production of the ten Community producers which co-operated with the Commission, which includes the five sampled Community producers, represents 85 % of the total production of okoumé plywood in the Community as estimated in the complaint. They are therefore deemed to constitute ‘the Community industry’ within the meaning of Articles 4(1) and 5(4) of the basic Regulation.
E. INJURY
1. PRELIMINARY REMARK
(73)
In view of the fact that sampling had been used with regard to the Community industry, injury has been assessed on the basis of the information collected. Trends concerning production, productivity, sales, market share, employment and growth were assessed at the level of the Community industry, and trends concerning prices and profitability, cash flow, ability to raise capital and investments, stocks, capacity and utilisation of capacity, return on investment and wages were analysed on the basis of the information collected at the level of the sampled Community producers.
2. COMMUNITY CONSUMPTION
(74)
Community consumption was established on the basis of the sales volumes of the Community industry on the Community market, plus the estimated sales of the other Community producers, plus all the imports from the PRC, Morocco and Gabon and an estimated proportion of imports of the product concerned from the other third countries under CN code 4412 13 10, as the product concerned only represents a part of this customs code. This proportion and the estimation of all imports were based on the methodology followed in the complaint.
(75)
Between 1999 and the IP, the apparent Community consumption increased from 394 663 m3 to 447 979 m3, i.e. by 14 %.
1999
2000
2001
2002
IP
Community consumption (m3)
394 663
401 096
400 966
424 131
447 979
3. IMPORTS FROM THE COUNTRY CONCERNED
3.1. Volume and market share
(76)
Imports of the product concerned from the PRC into the Community increased from 1 093 m3 in 1999 to 83 606 m3 in the IP. The imports were not very significant until 2001, but increased sharply from then until the end of the IP.
1999
2000
2001
2002
IP
Imports from the PRC (m3)
1 093
1 540
9 531
43 082
83 606
(77)
The corresponding market share increased from 0,3 % in 1999 to 18,7 % in the IP. The increase was particularly sharp, from 2,4 % to 18,7 %, between 2001 and the IP.
1999
2000
2001
2002
IP
Market share of imports from PRC
0,3 %
0,4 %
2,4 %
10,2 %
18,7 %
3.2. Prices
(78)
Average prices of imports of the product concerned from the PRC decreased from EUR 469/m3 in 1999 to EUR 393/m3 in the IP, i.e. a decrease of 16,2 %. Given the very low volumes of imports in 1999 and 2000, data on corresponding prices are not very meaningful. However, an overall decreasing trend emerges throughout the period under consideration, in spite of the small rise between 2000 and 2001.
1999
2000
2001
2002
IP
Average price of imports from PRC (EUR/m3)
469
361
431
434
393
3.3. Price undercutting
(79)
For the purposes of analysing price undercutting, the weighted average sales prices per product type of the sampled Community industry to unrelated customers on the Community market were compared with the corresponding weighted average export prices of the imports concerned. The comparison was made after deduction of rebates and discounts. The prices of the Community industry were adjusted to an ex-works basis. The prices of the imports concerned were on a CIF basis with an appropriate adjustment for the customs duties and post importation costs.
(80)
It has been pointed out to the Commission that the quality of the products manufactured by the Community industry is generally higher than that of the like product imported from the PRC. Based on the evidence found, it was considered that this quality difference justified an estimated adjustment of 10 %, which was added to the CIF Community frontier price of the co-operating exporting producers.
(81)
This comparison showed that during the IP the products concerned originating in the PRC were sold in the Community at prices which undercut the Community industry's prices by margins ranging from 11 % to 52 % when expressed as a percentage of the latter's prices.
4. SITUATION OF THE COMMUNITY INDUSTRY
(82)
In accordance with Article 3(5) of the basic Regulation, the Commission examined all relevant economic factors and indices having a bearing on the state of the Community industry from 1999 to the IP.
4.1. Data relating to the Community industry as a whole
4.1.1. Production, employment and productivity
(83)
The production volume of the Community industry decreased by 10 % between 1999 and the IP, from 295 915 m3 to 267 591 m3.
1999
2000
2001
2002
IP
Production (m3)
295 915
293 320
309 933
283 265
267 591
(84)
Employment decreased by 9 % between 1999 and the IP. Moreover, during the IP one of the companies decided to reduce its staff by 66, although for legal reasons this will only take effect officially after the IP. Productivity increased between 1999 and 2001, and then decreased again between 2001 and the IP, due to the reduction in output.
1999
2000
2001
2002
IP
Employment
1 608
1 642
1 600
1 489
1 462
Production per employee
184
179
194
190
183
4.1.2. Sales volume and market share
(85)
Over the period under consideration, the EC sales volume of the Community industry decreased by 10 %, from 283 121 m3 in 1999 to 255 943 m3 during the IP. The decrease was particularly sharp between 2001 and the IP (-12 %).
1999
2000
2001
2002
IP
EC sales (m3)
283 121
291 562
292 264
272 488
255 943
(86)
The Community industry’s market share decreased in volume from 71,7 % in 1999 to 57,1 % in the IP. It declined particularly sharply during the 18 months after the surge of imports from China, from 72,9 % in 2001 to 57,1 % in the IP.
1999
2000
2001
2002
IP
EC market share
71,7 %
72,7 %
72,9 %
64,2 %
57,1 %
4.1.3. Growth
(87)
While Community consumption grew by 14 % between 1999 and the IP, the sales volume of the Community industry declined by 10 %. On the other hand, the volume of imports from the PRC, increased sharply in the same period. While the market share of imports from the PRC increased by more than 16 percentage points, the market share of the Community industry dropped by 15 percentage points. The increase in imports therefore meant that the European industry did not participate in the growth of the market between 1999 and the IP.
4.2. Data relating to the sampled Community producers
4.2.1. Stocks, capacity and capacity utilisation
(88)
Stock levels in this industry are usually not very significant since most production takes place to order. For the sake of completeness it is noted that the stock levels of the Community industry declined during the period under consideration. This was mainly due to rationalisation efforts by one of the largest Community producers. However, it is considered that in this case stocks were not a relevant indicator of injury for the above reasons.
(89)
The production capacity was established on the basis of the number and capacity of plywood presses, working two daily shifts. The determination of production capacity had to be estimated as some producers manufacture okoumé plywood using the same facilities and equipment as for other types of plywood. In those cases, the production capacity for the product concerned was estimated by establishing the proportion of okoumé plywood actually produced in comparison to the total plywood produced by the given producer, and then applying this proportion to the total production capacity of the production facility in question.
(90)
Bearing in mind the above, it was found that during the period under consideration the production capacity of the Community industry decreased by 5 %. The decrease in 2001 is due to the closure of one production unit. During the same period, the capacity utilisation of the Community industry decreased from 87 % to 74 %, i.e. by 15 %.
1999
2000
2001
2002
IP
Production capacity (m3)
255 774
262 420
236 348
242 835
242 668
Capacity utilisation
87,4 %
82,0 %
93,1 %
80,4 %
74,2 %
4.2.2. Prices and factors affecting domestic prices
(91)
Average prices per m3 of the Community industry have remained relatively stable, with a nominal increase of 3 % between 1999 and the IP. The absence of price declines despite the competition from low-priced Chinese imports may be explained by the decision of Community producers to make some shift in their product mix.
1999
2000
2001
2002
IP
Average selling price (EUR/m3)
695
697
723
717
717
4.2.3. Investments and ability to raise capital
(92)
Between 1999 and the 2001, the industry made significant investments, from EUR 6,5 million to EUR 10,4 million annually. After 2001, when imports from the PRC increased steeply, investments decreased sharply to only EUR 1,3 million in the IP.
1999
2000
2001
2002
IP
Investments (in EUR ’000)
6 536
7 500
10 406
3 093
1 327
(93)
In the recent past, including the period under consideration, the Community okoumé plywood producers, which are part of the broader wood products industry, have undergone significant re-structuring and consolidation movements. These movements involved changes of ownership and re-grouping of the companies, sometimes within broader industrial groups, as well as considerable modernization investments as shown above.
(94)
As to ability to raise capital, there was no claim from the Community industry, nor indication, that the Community industry encountered problems in raising capital for its activities. This may be attributed to the effects of the above-mentioned consolidation of the industry, through which the financial resources of large industrial groups were made available to some of the Community producers.
4.2.4. Profitability, return on investment and cash flow
(95)
Over the period under consideration, the profitability of the sampled Community producers dropped significantly from 3,5 % in 1999 to -8,9 % in the IP. The return on investment followed the same trend, falling from 15,6 % in 1999 to -27,5 % during the IP.
1999
2000
2001
2002
IP
Profitability
3,5 %
0,8 %
-2,7 %
-7,6 %
-8,9 %
Return on investment
15,6 %
3,4 %
-9,4 %
-23,8 %
-27,5 %
(96)
The cash flow generated by the like product diminished considerably from EUR 7,6 million in 1999 to EUR 0,059 million during the IP. During the same period, there were some substantial short-term cash flow variations which were due to stock level variations and non-cash expenses related to the above-mentioned restructuring of the industry.
1999
2000
2001
2002
IP
Cash flow (in EUR ’000)
7 594
-876
-2 050
591
59
4.2.5. Wages
(97)
Labour costs decreased by 7 % over the period under consideration, from EUR 32,2 million in 1999 to EUR 29,9 million during the IP due to the reduction in the number of people employed. Average labour costs per employee actually increased by 7 %, from EUR 26 770 to EUR 28 638, i.e. in line with consumer prices.
1999
2000
2001
2002
IP
Labour costs per employee (EUR)
26 770
27 661
27 649
28 641
28 638
4.2.6. Magnitude of the dumping margin
(98)
Given the volume and the price of the dumped imports, the impact of the actual margin of dumping, which is also significant, cannot be considered negligible.
4.2.7. Recovery from past dumping
(99)
The Community industry was not in a situation where it had to recover from the past effects of injurious dumping.
5. CONCLUSION ON INJURY
(100)
Between 1999 and the IP the volume of dumped imports of the product concerned originating in the PRC increased from 1 093 m3 to 83 606 m3. The corresponding market share increased from 0,3 % in 1999 to 18,7 % during the IP. Most of the increase took place between 2002 and the IP. The average prices of the dumped imports decreased over the period under consideration by 16,2 % and were consistently lower than those of the Community industry, undercutting the latter by 11 % to 52 %.
(101)
An examination of the above factors shows that between 1999 and the IP, the situation of the Community industry deteriorated. Over the period under consideration, the Community industry’s sales volume decreased by 10 % and its market share decreased by 14,6 percentage points. Employment was also reduced from 2001 onwards. For the sampled Community producers investments dropped significantly and profitability, return on investment as well as cash flow decreased dramatically. The deterioration in the situation of the Community industry mainly took place through a sales volume effect (which is reflected in the reduction of the capacity utilisation). Price levels, from 1999 until the IP, declined only slightly in real terms.
(102)
In the light of the foregoing, it is provisionally concluded that the Community industry suffered material injury within the meaning of Article 3(5) of the basic Regulation.
F. CAUSATION
1. INTRODUCTION
(103)
In accordance with Article 3(6) and (7) of the basic Regulation, it was examined whether the dumped imports originating in the PRC have caused injury to the Community industry to a degree that may be considered as material. Known factors other than the dumped imports, which could at the same time have injured the Community industry, were also examined to ensure that the possible injury caused by these other factors was not attributed to the dumped imports.
2. EFFECT OF THE DUMPED IMPORTS
(104)
Between 1999 and the IP, the volume of imports of the product concerned from the PRC into the Community increased from insignificant levels to 83 606 m3. Its corresponding share of the Community market went from 0,3 % in 1999 to reach 18,7 % during the IP. The greatest increase took place between 2001 and the IP.
(105)
The substantial increase in the volume of imports originating in the country concerned and their gain in market share in 2002 and during the IP, at prices which decreased and remained well below those of the Community industry, coincided with the deterioration of the situation of the Community industry during the very same period, in particular in terms of sales volume, market share, profitability, cash flow and employment. As mentioned above, the imports originating in the PRC undercut the average sales price of the Community industry by significant amounts, with undercutting margins ranging from 11 % to 52 %.
(106)
In the analysis of the effect of the dumped imports, it was found that price is an important element of competition, given the relatively standardised characteristics of okoumé plywood products. Moreover, even taking into account the differences in quality, prices of dumped imports were considerably below both those of the Community industry as well as those of other third country exporters. Finally, it was also found that the Community industry had lost some major customers, which had shifted to Chinese plywood suppliers.
(107)
It is therefore provisionally concluded that the pressure exerted by the imports concerned, which significantly increased their volume and market share from 2001 onwards, and which were made at low, dumped prices, played a determining role in causing the loss of market share for the Community industry and, as a consequence, a deterioration in its financial situation.
3. EFFECTS OF OTHER FACTORS
3.1. Imports originating in third countries other than PRC
(108)
According to Eurostat, imports originating in third countries other than the PRC increased slightly, from 60 975 m3 in 1999 to 62 430 m3 during the IP. However, their market share decreased overall from 15,4 % in 1999 to 13,9 % in the IP. The main individual countries exporting the product concerned to the Community are Gabon and Morocco. Gabon maintained a market share at an overall stable level of 5 %, while Morocco's market share increased from 1,1 % to 2,4 %.
(109)
According to Eurostat, the average price of imports originating in countries other than the PRC remained virtually unchanged between 1999 and the IP. Throughout this period prices of imports from other countries were nearly 50 % higher than the prices of imports from the PRC. Consequently, imports from other third countries did not exert a competitive pressure on the Community industry to the extent that imports from the PRC did. Also, the market share of any individual country in that group was not greater than 5 %.
(110)
It is therefore provisionally concluded that imports from other third countries could not be a determining reason for the injurious situation of the Community industry.
3.2. Export performance by the Community industry
(111)
It was claimed that the declining exports of the European industry due to a loss of competitiveness, are also a cause of the deterioration in its financial situation. Non-EC sales of the sampled Community producers did indeed decline from 9 522 m3 in 1999 to 7 374 m3 in the IP. However, the magnitude of this decrease, and the fact that non-EC sales represented less than 5 % of the EC sales during the IP, mean that such a development could not be a determining reason for the injurious situation of the Community industry.
3.3. Performance of other Community producers
(112)
As regards the sales volume of other Community producers, it declined from an estimated 49 474 m3 in 1999 to 46 000 in the IP. Their share of the Community market fell from 12,5 % to 10,3 % over the same period, and no indication was found that their prices were lower than those of the co-operating Community industry. Therefore, it is provisionally concluded that the products produced and sold by the other Community producers did not contribute to the injury suffered by the Community industry.
3.4. Increase in the costs of the Community industry
(113)
It was claimed that the degradation of the Community industry's profitability can be attributed to the rise in the industry’s costs, in particular those of raw materials. However, the data collected during the on-spot investigation showed that the rise in total average costs between 1999 and the IP was not higher than the rise in the overall price level in the Community over the same period, i.e. 8 %. Given the decrease in production volume, part of that increase is due to rising fixed costs per unit, and variable costs are likely to have increased even less than total average costs.
(114)
It is therefore provisionally concluded that, under normal economic conditions and in the absence of strong price pressure, the industry would have had no difficulty in coping with whatever increase in cost it experienced between 1999 and the IP and that this increase does not break the causal link between the dumped imports from the PRC and the material injury suffered by the Community industry.
4. CONCLUSION
(115)
The substantial increase in volume and market share of the imports originating in the PRC, especially between 2001 and the IP, as well as the considerable decrease in their sales prices and the level of price undercutting found during the IP coincided with the material injury suffered by the Community industry.
(116)
The imports from other third countries, exports of the Community industry, the performance of other producers and development of costs were analysed but found not to be a determining reason for the injury suffered by the Community industry.
(117)
Based on the above analysis, which has properly distinguished and separated the effects of all known factors having an effect on the situation of the Community industry, from the injurious effect of the dumped imports, it is therefore provisionally concluded that the imports from the PRC have caused material injury to the Community within the meaning of Article 3(6) of the basic Regulation.
G. COMMUNITY INTEREST
(118)
In accordance with Article 21 of the basic Regulation, it was examined whether, despite the conclusion on injurious dumping, compelling reasons existed for concluding that it is not in the Community interest to adopt measures in this particular case. The impact of possible measures on all parties involved in this proceeding and also the consequences of not taking measures were considered.
1. INTERESTS OF THE COMMUNITY INDUSTRY
(119)
Okoumé plywood is part of the broader overall Community wood products industry. Some of the companies investigated are totally or partially specialised in okoumé products, which have distinct characteristics in terms of production process, quality, applications, marketing channels etc. These companies account for over 1 400 direct jobs in the Community.
(120)
The imposition of measures is expected to prevent further distortions and restore fair competition on the market. The Community industry should then be able to increase its sales, thereby generating the necessary profit level to justify continued investment in its production facilities. This should lead to increased productivity, lower unit costs and an improvement in the Community industry’s financial situation.
(121)
On the other hand, should anti-dumping measures not be imposed, it is likely that the deterioration in the situation of the Community industry would continue. It would not be able to carry out the necessary investments in order to compete effectively with dumped imports from third countries. Indeed, in view of the decreasing revenue and the material injury suffered, it is most likely that the financial situation of the Community industry would deteriorate further in the absence of measures. This would in all likelihood force some companies to cease production and lay off their employees in the short term future.
(122)
Accordingly, it is provisionally concluded that the imposition of anti-dumping measures would allow the Community industry to recover from the effects of injurious dumping suffered and is in the interest of the Community industry.
2. INTEREST OF UNRELATED IMPORTERS AND USERS IN THE COMMUNITY
(123)
The Commission sent questionnaires to all known importers, traders and users. In all, 27 questionnaires were sent out to importers and traders and their associations, and 12 to users. No replies to those questionnaires were received.
(124)
It was submitted by the representatives of the exporting producers that the European construction and furniture industries require an abundant and cheap supply of okoumé plywood in order to remain competitive in the European and export markets. Although exporters do not have standing in the context of the examination of Community interest, the substance of the argument was nevertheless examined. Given the absence of cooperation from users and the fact that the known applications of okoumé plywood are spread across a wide variety of sectors, it was not possible to make an estimate on the possible impact of any duty on the costs of users.
(125)
Moreover, it should be recalled that measures are not intended to prevent imports into the Community but to ensure that they are not made at injuriously dumped prices. It should also be pointed out that the five sampled Community producers still have unused production capacity. This together with exports from other third countries provides alternative sources of supply for users.
(126)
In addition, none of those user industries has taken a position with respect to the proceeding. Therefore it may be provisionally concluded that their competitive position will not be substantially affected by its outcome.
3. CONCLUSION ON COMMUNITY INTEREST
(127)
On the basis of the above, it is provisionally concluded that no compelling reasons exist for not imposing measures and that the application of measures would be in the interest of the Community.
H. PROVISIONAL ANTI-DUMPING MEASURES
1. INJURY ELIMINATION LEVEL
(128)
In order to prevent further injury being caused by the dumped imports, it is considered appropriate to adopt provisional anti-dumping measures.
(129)
For the purpose of determining the level of these duties, account was taken of the dumping margins found and the amount of duty necessary to eliminate the injury sustained by the Community industry.
(130)
Taking into account the level of profitability obtained by the Community industry as a whole in 1999, a year which according to the industry can be considered as representative mid-point of the business cycle, it was found that a profit margin of 5 % of turnover could be regarded as an appropriate minimum which the Community industry could have expected to obtain in the absence of injurious dumping.
(131)
The necessary price increase was then determined on the basis of a comparison of the weighted average import price, as established for the price undercutting calculations, with the non-injurious price of products sold by the Community industry on the Community market. The non-injurious price has been obtained by adjusting the sales price of the sampled Community producers by the actual profit/loss made during the IP and by adding the above-mentioned profit margin. Any difference resulting from this comparison was then expressed as a percentage of the total CIF import value.
(132)
As the injury elimination level was higher than the dumping margin established, the provisional measures should be based on the latter.
2. PROVISIONAL MEASURES
(133)
In the light of the foregoing, it is considered that, in accordance with Article 7(2) of the basic Regulation, provisional anti-dumping duties should be imposed in respect of imports originating in the PRC at the level of the lowest of the dumping and the injury margins, in accordance with the lesser duty rule. In this case, all duty rates should accordingly be set at the level of the dumping margins found.
(134)
The individual company anti-dumping duty rates specified in this Regulation were established on the basis of the findings of the present investigation. They therefore reflect the situation found during that investigation with respect to these companies. These duty rates (as opposed to the country-wide duty applicable to ‘all other companies’) are thus exclusively applicable to imports of products originating in the country concerned and produced by the companies and thus by the specific legal entities mentioned. Imported products produced by any other company not specifically mentioned in the operative part of this Regulation with its name and address, including entities related to those specifically mentioned, cannot benefit from these rates and shall be subject to the duty rate applicable to ‘all other companies’.
(135)
Any claim requesting the application of these individual company anti-dumping duty rates (e.g. following a change in the name of the entity or following the setting up of new production or sales entities) should be addressed to the Commission forthwith with all relevant information, in particular any modification in the company's activities linked to production, domestic and export sales associated with, for example, that name change or that change in the production and sales entities. If appropriate the Commission will, after consultation of the Advisory Committee, amend the Regulation accordingly by updating the list of companies benefiting from individual duty rates.
I. FINAL PROVISION
(136)
In the interests of sound administration, a period should be fixed within which the interested parties, which made themselves known within the time limit specified in the notice of initiation, may make their views known in writing and request a hearing. Furthermore, it should be stated that the findings concerning the imposition of duties made for the purposes of this Regulation are provisional and may have to be reconsidered for the purposes of any definitive measures.
HAS ADOPTED THIS REGULATION:
Article 1
1. A provisional anti-dumping duty is hereby imposed on imports of okoumé plywood, defined as plywood consisting solely of sheets of wood, each ply not exceeding 6 mm thickness, with at least one outer ply of okoumé, falling within CN code ex 4412 13 10 (TARIC code 4412131010) and originating in the People’s Republic of China.
2. The rate of duty applicable to the net free-at-Community-frontier price, before duty, for products produced by the following manufacturers shall be as follows:
Manufacturer
Rate of duty %
Taric additional code
Nantong Zongyi Plywood Co., Ltd. Xingdong Town, Tongzhou City, Jiangsu Province, People’s Republic of China
12,0
A526
Zhejiang Deren Bamboo-Wood Technologies Co., Ltd. Linhai Economic Development Zone, Zhejiang, People’s Republic of China
23,9
A527
Zhonglin Enterprise (Dangshan) Co., Ltd. Xue Lou Miao Pu, Dangshan County, Anhui Province 235323, People’s Republic of China
8,5
A528
Jiaxing Jinlin Lumber Co., Ltd. North of Ganyao Town, Jiashan, Zhejiang Province, People’s Republic of China
18,5
A529
All other companies
48,5
A999
3. Unless otherwise specified, the provisions in force concerning customs duties shall apply.
4. The release for free circulation in the Community of the product referred to in paragraph 1 shall be subject to the provisions of a security, equivalent to the amount of the provisional duty.
Article 2
Without prejudice to Article 20 of Regulation (EC) No 384/96, the interested parties may make their views known in writing and apply to be heard orally by the Commission within one month of the date of entry into force of this Regulation.
Pursuant to Article 21(4) of Regulation (EC) No 384/96, the parties concerned may comment on the application of this Regulation within one month of its entry into force.
Article 3
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
Article 1 of this Regulation shall apply for a period of six months.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 May 2004. | [
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*****
COMMISSION REGULATION (EEC) No 1543/88
of 1 June 1988
amending Regulation (EEC) No 1725/79 in regard to certain provisions applying to the granting of aid for skimmed-milk powder for use as animal feed
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 804/68 of 27 June 1968 on the common organization of the market in milk and milk products (1), as last amended by Regulation (EEC) No 1109/88 (2), and in particular Article 10 (3) thereof,
Whereas pursuant to Article 4 (1) of Commission Regulation (EEC) No 1725/79 (3), as last amended by Regulation (EEC) No 3183/86 (4), aid is not granted for skimmed-milk powder processed into compound feed unless the finished product incorporates at least 60 % by weight of such powder; whereas as a result of changes in the market situation for skimmed milk this incorporation rate can be adjusted;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Prodcuts,
HAS ADOPTED THIS REGULATION:
Article 1
Article 4 (1) of Regulation (EEC) No 1725/79 is hereby amended as follows:
1. in point (a) of the first subparagraph, '60 kilograms' is replaced by '45 kilograms';
2. in the third subparagraph, '60 kilograms' is replaced by '45 kilograms' both times, and '59 kilograms' by '44 kilograms'.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply with effect from 6 June 1988.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 1 June 1988. | [
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Council Regulation (EC) No 1899/2001
of 27 September 2001
amending Regulation (EC) No 194/1999 imposing definitive anti-dumping duties on imports of hardboard originating in Bulgaria, Estonia, Latvia, Lithuania, Poland and Russia and definitively collecting the provisional duties imposed
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community(1) and in particular Article 8 thereof,
Having regard to the proposal submitted by the Commission after consulting the Advisory Committee,
Whereas:
A. PREVIOUS PROCEDURE
(1) On 7 November 1997, by means of a notice published in the Official Journal of the European Communities(2), the Commission announced the initiation of an anti-dumping proceeding in respect of imports of hardboard originating, inter alia, in Latvia.
(2) The proceeding resulted in anti-dumping duties being imposed by Regulation (EC) No 194/1999(3) in January 1999 in order to eliminate the injurious effects of dumping.
(3) In parallel, by Decision 1999/71/EC(4), the Commission also accepted an undertaking from, inter alia, one Latvian company AS "Bolderâja" (TARIC Additional Code 8499 ), and imports of hardboard originating in Latvia exported to the Community by this company were exempted from the anti-dumping duty by Article 2(1) and (3) of the abovementioned Regulation.
B. VOLUNTARY WITHDRAWAL OF AN UNDERTAKING
(4) Following changes in its trading activities, AS "Bolderâja", advised the Commission that it wished to withdraw its undertaking. Accordingly, by Commission Decision 2001/707/EC(5), the name of this company has been deleted from the list of companies from which undertakings are accepted in Article 1(1) of Decision 1999/71/EC.
C. AMENDMENT OF REGULATION (EC) No 194/1999
(5) In view of the above, Article 2(3) of Regulation (EC) No 194/1999 which lists the companies exempted from the anti-dumping duties should be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
Article 2(3) of Regulation (EC) No 194/1999 shall be replaced by the following: "3. Imports accompanied by an undertaking invoice shall be declared under the following TARIC additional codes:
TABLE "
Article 2
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 September 2001. | [
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COMMISSION REGULATION (EC) No 873/94 of 19 April 1994 establishing unit values for the determination of the customs value of certain perishable goods
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1),
Having regard to Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (2), as last amended by Commission Regulation (EC) No 655/94 of 24 March 1994 (3), and in particular Article 173 (1) thereof,
Whereas Articles 173 to 177 of Regulation (EEC) No 2454/93 provide that the Commission shall periodically establish unit values for the products referred to in the classification in Annex 26 to that Regulation;
Whereas the result of applying the rules and criteria laid down in the abovementioned Articles to the elements communicated to the Commission in accordance with Article 173 (2) of Regulation (EEC) No 2454/93 is that unit values set out in the Annex to this Regulation should be established in regard to the products in question,
HAS ADOPTED THIS REGULATION:
Article 1
The unit values provided for in Article 173 (1) of Regulation (EEC) No 2454/93 are hereby established as set out in the table in the Annex hereto.
Article 2
This Regulation shall enter into force on 22 April 1994.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 19 April 1994. | [
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COUNCIL DIRECTIVE 92/13/EEC of 25 February 1992 coordinating the laws, regulations and administrative provisions relating to the application of Community rules on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 100a thereof,
Having regard to the proposal from the Commission(1) ,
In cooperation with the European Parliament(2) ,
Having regard to the opinion of the Economic and Social Committee(3) ,
Whereas Council Directive 90/531/EEC of 17 September 1990 on the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors(4) lays down rules for procurement procedures to ensure that potential suppliers and contractors have a fair opportunity to secure the award of contracts, but does not contain any specific provisions ensuring its effective application;
Whereas the existing arrangements at both national and Community levels for ensuring its application are not always adequate;
Whereas the absence of effective remedies or the inadequacy of existing remedies could deter Community undertakings from submitting tenders; whereas, therefore, the Member States must remedy this situation;
Whereas Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts(5) is limited to contract award procedures within the scope of Council Directive 71/305/EEC of 26 July 1971 concerning the coordination of procedures for the award of public works contracts(6) , as last amended by Directive 90/531/EEC, and Council Directive 77/62/EEC of 21 December 1976 coordinating procedures for the award of public supply contracts(7) , as last amended by Directive 90/531/EEC;
Whereas the opening-up of procurement in the sectors concerned to Community competition implies that provisions must be adopted to ensure that appropriate review procedures are made available to suppliers or contractors in the event of infringement of the relevant Community law or national rules implementing that law;
Whereas it is necessary to provide for a substantial increase in the guarantees of transparency and non-discrimination and whereas, for it to have tangible effects, effective and rapid remedies must be available;
Whereas account must be taken of the specific nature of certain legal orders by authorizing the Member States to choose between the introduction of different powers for the review bodies which have equivalent effects;
Whereas one of these options includes the power to intervene directly in the contracting entities' procurement procedures such as by suspending them, or by setting aside decisions or discriminatory clauses in documents or publications;
Whereas the other option provides for the power to exert effective indirect pressure on the contracting entities in order to make them correct any infringements or prevent them from committing infringements, and to prevent injury from occurring;
Whereas claims for damages must always be possible;
Whereas, where a claim is made for damages representing the costs of preparing a bid or of participating in an award procedure, the person making the claim is not be required, in order to obtain the reimbursement of his costs, to prove that the contract would have been awarded to him in the absence of such infringement;
Whereas the contracting entities which comply with the procurement rules may make this known through appropriate means; whereas this requires an examination, by independent persons, of procurement procedures and practices applied by those entities;
Whereas for this purpose an attestation system, allowing for a declaration on the correct application of the procurement rules, to be made in notices published in the Official Journal of the European Communities, is appropriate;
Whereas the contracting entities should have the opportunity of having recourse to the attestation system if they so wish; whereas the Member States must offer them the possibility of doing so; whereas they can do so either by setting up the system themselves or by allowing the contracting entities to have recourse to the attestation system established by another Member State; whereas they may confer the task of carrying out the examination under the attestation system to persons, professions or staff of institutions;
Whereas the necessary flexibility in the introduction of such a system is guaranteed by laying down the essential requirements for it in this Directive; whereas operational details should be provided in European Standards to which this Directive refers;
Whereas the Member States may need to determine operational details prior to, or in addition to, the rules contained in European Standards;
Whereas, when undertakings do not seek review, certain infringements may not be corrected unless a specific mechanism is put in place;
Whereas, accordingly, the Commission, when it considers that a clear and manifest infringement has been committed during a contract award procedure, should be able to bring it to the attention of the competent authorities of the Member State and of the contracting entity concerned so that appropriate steps are taken for the rapid correction of that infringement;
Whereas it is necessary to provide for the possibility of conciliation at Community level to enable disputes to be settled amicably;
Whereas the application in practice of this Directive should be reviewed at the same time as that of Directive 90/531/EEC on the basis of information to be supplied by the Member States concerning the functioning of the national review procedures;
Whereas this Directive must be brought into effect at the same time as Directive 90/531/EEC;
Whereas it is appropriate that the Kingdom of Spain, the Hellenic Republic and the Portuguese Republic are granted adequate additional periods to transpose this Directive, taking account of the dates of application of Directive 90/531/EEC in those countries,
HAS ADOPTED THIS DIRECTIVE:
CHAPTER I Remedies at national level
Article 1
1. The Member States shall take the measures necessary to ensure that decisions taken by contracting entities may be reviewed effectively and, in particular, as rapidly as possible in accordance with the conditions set out in the following Articles and, in particular, Article 2 (8), on the grounds that such decisions have infringed Community law in the field or procurement or national rules implementing that law as regards:
(a) contract award procedures falling within the scope of Council Directive 90/531/EEC; and
(b) compliance with Article 3 (2) (a) of that Directive in the case of the contracting entities to which that provision applies.
2. Member States shall ensure that there is no discrimination between undertakings likely to make a claim for injury in the context of a procedure for the award of a contract as a result of the distinction made by this Directive between national rules implementing Community law and other national rules.
3. The Member States shall ensure that the review procedures are available, under detailed rules which the Member States may establish, at least to any person having or having had an interest in obtaining a particular contract and who has been or risks being harmed by an alleged infringement. In particular, the Member States may require that the person seeking the review must have previously notified the contracting entity of the alleged infringement and of his intention to seek review.
Article 2
1. The Member States shall ensure that the measures taken concerning the review procedures specified in Article 1 include provision for the powers:
either
(a) to take, at the earliest opportunity and by way of interlocutory procedure, interim measures with the aim of correcting the alleged infringement or preventing further injury to the interests concerned, including measures to suspend or to ensure the suspension of the procedure for the award of a contract or the implementation of any decision taken by the contracting entity; and
(b) to set aside or ensure the setting aside of decisions taken unlawfully, including the removal of discriminatory technical, economic or financial specifications in the notice of contract, the periodic indicative notice, the notice on the existence of a system of qualification, the invitation to tender, the contract documents or in any other document relating to the contract award procedure in question;
or
(c) to take, at the earliest opportunity, if possible by way of interlocutory procedures and if necessary by a final procedure on the substance, measures other than those provided for in points (a) and (b) with the aim of correcting any identified infringement and preventing injury to the interests concerned; in particular, making an order for the payment of a particular sum, in cases where the infringement has not been corrected or prevented.
Member States may take this choice either for all contracting entities or for categories of entities defined on the basis of objective criteria, in any event preserving the effectiveness of the measures laid down in order to prevent injury being caused to the interests concerned;
(d) and, in both the above cases, to award damages to persons injured by the infringement.
Where damages are claimed on the grounds that a decision has been taken unlawfully, Member States may, where their system of internal law so requires and provides bodies having the necessary powers for that purpose, provide that the contested decision must first be set aside or declared illegal.
2. The powers referred to in paragraph 1 may be conferred on separate bodies responsible for different aspects of the review procedure.
3. Review procedures need not in themselves have an automatic suspensive effect on the contract award procedures to which they relate.
4. The Member States may provide that, when considering whether to order interim measures, the body responsible may take into account the probable consequences of the measures for all interests likely to be harmed, as well as the public interest, and may decide not to grant such measures where their negative consequences could exceed their benefits. A decision no to grant interim measures shall not prejudice any other claim of the person seeking these measures.
5. The sum to be paid in accordance with paragraph 1 (c) must be set at a level high enough to dissuade the contracting entity from committing or persisting in an infringement. The payment of that sum may be made to depend upon a final decision that the infringement has in fact taken place.
6. The effects of the exercise of the powers referred to in paragraph 1 on a contract concluded subsequent to its award shall be determined by national law. Furthermore, except where a decision must be set aside prior to the award of damages, a Member State may provide that, after the conclusion of a contract following its award, the powers of the body responsible for the review procedures shall be limited to awarding damages to any person harmed by an infringement.
7. Where a claim is made for damages representing the costs of preparing a bid or of participating in an award procedure, the person making the claim shall be required only to prove an infringement of Community law in the field of procurement or national rules implementing that law and that he would have had a real chance of winning the contract and that, as a consequence of that infringement, that chance was adversely affected.
8. The Member States shall ensure that decisions taken by bodies responsible for review procedures can be effectively enforced.
9. Whereas bodies responsible for review procedures are not judicial in character, written reasons for their decisions shall always be given. Furthermore, in such a case, provision must be made to guarantee procedures whereby any allegedly illegal measures taken by the review body or any alleged defect in the exercise of the powers conferred on it can be the subject of judicial review or review by another body which is a court or tribunal within the meaning of Article 177 of the Treaty and independent of both the contracting entity and the review body.
The members of the independent body referred to in the first paragraph shall be appointed and leave office under the same conditions as members of the judiciary as regards the authority responsible for their appointment, their period of office, and their removal. At least the President of this independent body shall have the same legal and professional qualifications as members of the judiciary. The independent body shall take its decisions following a procedure in which both sides are heard, and these decisions shall, by means determined by each Member State, be legally binding.
CHAPTER 2 Attestation
Article 3
The Member States shall give contracting entities the possibility of having recourse to an attestation system in accordance with Articles 4 to 7.
Article 4
Contracting entities may have their contract award procedures and practices which fall within the scope of Directive 90/531/EEC examined periodically with a view to obtaining an attestation that, at that time, those procedures and practices are in conformity with Community law concerning the award of contracts and the national rules implementing the law.
Article 5
1. Attestors shall report to the contracting entity, in writing, on the results of their examination. They shall satisfy themselves, before delivering to the contracting entity the attestation referred to in Article 4, that any irregularities identified in the contracting entity's award procedures and practices have been corrected and measures have been taken to ensure that those irregularities are not repeated.
2. Contracting entities having obtained that attestation may include the following statement in notice published in the Official Journal of the European Communities pursuant to Articles 16 to 18 of Directive 90/531/EEC:
'The contracting entity has obtained an attestation in accordance with Council Directive 92/13/EEC that, on ................., its contract award procedures and practices were in conformity with Community law and the national rules implementing that law.'
Article 6
1. Attestors shall be independent of the contracting entities and must be completely objective in carrying out their duties. They shall offer appropriate guarantees of relevant professional qualifications and experience.
2. Member States may identify any persons, professions or institutions whose staff, called upon the act as attestors, they regard as fulfilling the requirements of paragraph 1. For these purposes, Member States may require professional qualifications, at least at the level of a higher education diploma within the meaning of Directive 89/48/EEC(8) , which they regard as relevant, or provide that particular examinations of professional competence organized or recognized by the State offer such guarantees.
Article 7
The provisions of Articles 4, 5 and 6 shall be considered as essential requirements for the development of European standards on attestation.
CHAPTER 3 Corrective mechanism
Article 8
1. The Commission may invoke the procedures for which this Article provides when, prior to a contract being concluded, it considers that a clear and manifest infringement of Community provisions in the field of procurement has been committed during a contract award procedure fallig within the scope of Directive 90/531/EEC or in relation to Article 3 (2) (a) of that Directive in the case of the contracting entities to which that provision applies.
2. The Commission shall notify the Member States and the contracting entity concerned of the reasons which have led it to conclude that a clear and manifest infringement has been committed and request its correction by appropriate means.
3. Within 30 days of receipt of the notification referred to in paragraph 2, the Member States concerned shall communicate to the Commission:
(a) its confirmation that the infringement has been corrected; or
(b) a reasoned submission as to why no correction has been made; or
(c) a notice to the effect that the contract award procedure has been suspended either by the contracting entity on its own initiative or on the basis of the powers specified in Article 2 (1) (a).
4. A reasoned submission in accordance with paragraph 3 (b) may rely among other matters on the fact that the alleged infringement is already the subject of judicial review proceedings or of a review as referred to in Article 2 (9). In such a case, the Member State shall inform the Commission of the result of those proceedings as soon as it becomes known.
5. Where notice has been given that a contract award procedure has been suspended in accordance with paragraph 3 (c), the Member State concerned shall notify the Commission when the suspension is lifted or another contract procedure relating in whole or in part to the same subject matter is begun. That new notification shall confirm that the alleged infringement has been corrected or include an reasoned submission as to why no correction has been made.
CHAPTER 4 Conciliation
Article 9
1. Any person having or having had an interest in obtaining a particular contract falling within the scope of Directive 90/531/EEC and who, in relation to the procedure for the award of that contract, considers that he has been or risks being harmed by an alleged infringement of Community law in the field of procurement or national rules impelementing that law may request the application of the conciliation procedure provided for in Articles 10 and 11.
2. The request referred to in paragraph 1 shall be addressed in writing to the Commission or to the national authorities listed in the Annex. These authorities shall forward requests to the Commission as quickly as possible.
Article 10
1. Where the Commission considers, on the basis of the request referred to in Article 9, that the dispute concerns the correct application of Community law, it shall ask the contracting entity to state whether it is willing to take part in the conciliation procedure. If the contracting entity declines to take part, the Commission shall inform the person who made the request that the procedure cannot be initiated. If the contracting entity agrees, paragraphs 2 to 7 shall apply.
2. The Commission shall propose, as quickly as possible, a conciliator drawn from a list of independent persons accredited for this purpose. This list shall be drawn up by the Commission, following consultation of the Advisory Committee for Public Contracts or, in the case of contracting entities the activities of which are defined in Article 2 (2) (d) of Directive 90/531/EEC, following consultation of the Advisory Committee on Telecommunications Procurement.
Each party to the conciliation procedure shall declare whether it accepts the conciliator, and shall designate an additional conciliator. The conciliators may invite not more than two other persons as experts to advices them in their work. The parties to the conciliation procedure and the Commission may reject any expert invited by the conciliators.
3. The conciliators shall give the person requesting the application of the conciliation procedure, the contracting entity and any other candidate or tenderer participating in the relevant contract award procedure the opportunity to make representations on the matter either orally or in writing.
4. The conciliators shall endeavour as quickly as possible to reach an agreement between the parties which is in accordance with Community law.
5. The conciliators shall report to the Commission on their findings and on any result achieved.
6. The person requesting the application of the concilation procedure and the contracting entity shall have the right to terminate the procedure at any time.
7. Unless the parties decide otherwise, the person requesting the application of the conciliation procedure and the contracting entity shall be responsible for their own costs. In addition, they shall each bear half of the costs of the procedure, excluding the costs of intervening parties.
Article 11
1. Where, in relation to a particular contract award procedure, an interested person within the meaning of Article 9, other than the person requesting the conciliation procedure, is pursuing judicial review proceedings or other proceedings for review within the meaning of this Directive, the contracting entity shall inform the conciliators. These shall inform that person that a request has been made to apply the conciliation procedure and shall invite that person to indicate within a given time limit whether he agrees to participate in that procedure. If that person refuses to participate, the conciliators may decide, acting if necessary by a majority, to terminate the conciliation procedure if they consider that the participation of this person is necessary to resolve the dispute. They shall notify their decision to the Committee and give the reasons for it.
2. Action taken pursuant to this Chapter shall be without prejudice to:
(a) any action that the Commission or any Member State might take pursuant ot Articles 169 or 170 of the Treaty or pursuant to Chapter 3 of this Directive;
(b) the rights of the persons requesting the conciliation procedure, of the contracting entity or of any other person.
CHAPTER 5 Final provisions
Article 12
1. Not later than four years after the application of this Directive, the Commission, in consultation with the Advisory Committee for Public Contracts, shall review the manner in which the provisions of this Directive have been implemented and, in particular, the use of the European Standards and, if necessary, make proposals for amendments.
2. Before 1 March each year the Member States shall communicate to the Commission information on the operation of their national review procedures during the preceding calendar year. The nature of the information shall be determined by the Commission in consultation with the Advisory Committee for Public Contracts.
3. In the case of matters relating to contracting entities the activities of which are defined in Article 2 (2) (d) of Directive 90/531/EEC, the Commission shall also consult the Advisory Committee on Telecommunications Procurement.
Article 13
1. Member States shall take, before 1 January 1993, the measures necessary to comply with this Directive. The Kingdom of Spain shall take these measures not later than 30 June 1995. The Hellenic Republic and the Portuguese Republic shall take these measures not later than 30 June 1997. They shall forthwith inform the Commission thereof.
When Member States adopt these measures, they shall contain an reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.
2. Member States shall bring into force the measures referred to in paragraph 1 on the same dates as those (laid down in Directive 90/531/EEC).
3. Member States shall communicate to the Commission the texts of the main provisions of domestic law which they adopt in the field governed by this Directive.
Article 14
This Directive is addressed to the Member States.
Done at Brussels, 25 February 1992. | [
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COMMISSION REGULATION (EC) No 769/2009
of 24 August 2009
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (1),
Having regard to Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules for Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (2), and in particular Article 138(1) thereof,
Whereas:
Regulation (EC) No 1580/2007 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in Annex XV, Part A thereto,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 138 of Regulation (EC) No 1580/2007 are fixed in the Annex hereto.
Article 2
This Regulation shall enter into force on 25 August 2009.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 24 August 2009. | [
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COMMISSION REGULATION (EC) No 2187/2004
of 20 December 2004
amending Regulation (EC) No 1615/2000 derogating from Regulation (EEC) No 2454/93 in respect of the definition of the concept of originating products used for the purposes of the scheme of generalised preferences to take account of the special situation of Nepal regarding certain exports of textiles to the Community
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (1), and in particular Article 247 thereof,
Having regard to Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (2), and in particular Article 76 thereof,
Whereas:
(1)
By Council Regulation (EC) No 2501/2001 of 10 December 2001 applying a scheme of generalised tariff preferences for the period 1 January 2002 to 31 December 2004 (3), the Community granted generalised tariff preferences to Nepal.
(2)
Commission Regulation (EEC) No 2454/93 of 2 July 1993 establishes the definition of the concept of originating products to be used for the purposes of the scheme of generalised tariff preferences (GSP). However, Regulation (EEC) No 2454/93 provides for derogations in favour of least-developed GSP-beneficiary countries which submit an appropriate request to that effect to the Community.
(3)
Nepal has benefited from such a derogation for certain textiles since 1997, in the last instance by virtue of Commission Regulation (EC) No 1615/2000 of 24 July 2000 derogating from Regulation (EEC) No 2454/93 in respect of the definition of the concept of originating products used for the purposes of the scheme of generalised preferences to take account of the special situation of Nepal regarding certain exports of textiles to the Community (4), as amended by Regulation No 293/2002 (5), which extended its validity until 31 December 2004. By letter dated 10 June 2004, Nepal has submitted a request for the renewal of this derogation.
(4)
The request submitted by Nepal has been considered by the Commission and has been found to be duly substantiated.
(5)
When the validity of Regulation No 1615/2000 was extended, it was considered that its expiry should coincide with the ending of the current GSP scheme, which was due to end on that date. However, Regulation No 2211/2003 (6) extended the validity of the GSP scheme for a further year, until 31 December 2005.
(6)
On 18 December 2003 the Commission published a Green Paper on the future of rules of origin in preferential trade arrangements (7) which opened a wide-ranging debate on the subject. On 7 July 2004 it published a Communication to the Council, the European Parliament and the Economic and Social Committee entitled ‘Developing countries, international trade and sustainable development: the function of the Community’s generalised system of preferences (GSP) for the 10-year period from 2006 to 2015’ (8), which also acknowledged the need for change in rules of origin. However, no decisions have yet been taken and no new rules will be in place before 31 December 2004.
(7)
A prolongation of the derogation should not pre-judge or prejudice the outcome of discussions on possible new rules of origin for GSP. However, the interests of traders concluding contracts both in Nepal and in the Community, as well as the stability and the sustained development of the Nepalese industry in terms of ongoing investment and employment, require that the derogation should be prolonged for a period of time sufficient to permit the continuation or conclusion of longer-term contracts, while facilitating the transition to possible new rules of origin for GSP.
(8)
The provisions of Regulation (EC) No 1615/2000, in particular the existence of quantitative limits, which apply on an annual basis, reflecting the Community market's capacity to absorb the Nepalese products, Nepal's export capacity and actual recorded trade flows, were designed to prevent injury to the corresponding branches of Community industry.
(9)
The derogation should therefore be renewed until 31 December 2006. However, in order to ensure fair treatment both for Nepal and for other least developed countries, the continuing need for the derogation should be reviewed once any new rules of origin are adopted in the context of the new generalised system of preferences.
(10)
Regulation (EC) No 1615/2000 should therefore be amended accordingly.
(11)
The measures provided for in this Regulation are in accordance with the opinion of the Customs Code Committee,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 1615/2000 is amended as follows:
-
in Article 2, ‘31 December 2004’ is replaced by ‘31 December 2006’;
-
the following paragraph is added:
‘The continuing need for the derogation shall however be reviewed not later than 31 December 2005, in accordance with the new provisions to be adopted with regard to the generalised system of preferences and the rules of origin related thereto’.
Article 2
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Union.
It shall apply from 1 January 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 December 2004. | [
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Commission Regulation (EC) No 1427/2002
of 2 August 2002
amending Regulation (EC) No 1555/96 on rules of application for additional import duties on fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables(1), as last amended by Regulation (EC) No 545/2002(2), and in particular Article 33(4) thereof,
Whereas:
(1) Commission Regulation (EC) No 1555/96(3), as last amended by Regulation (EC) No 906/2002(4), provides for surveillance of imports of the products listed in the Annex thereto. That surveillance is to be carried out in accordance with the rules on the surveillance of preferential imports laid down in Article 308d of Commission Regulation (EEC) No 2454/93(5), as last amended by Regulation (EC) No 444/2002(6).
(2) For the purposes of Article 5(4) of the Agreement on Agriculture(7) concluded during the Uruguay Round of multilateral trade negotiations and in the light of the latest data available for 1999, 2000 and 2001, the trigger levels for additional duties on apples should be adjusted.
(3) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fresh Fruit and Vegetables,
HAS ADOPTED THIS REGULATION:
Article 1
The Annex to Regulation (EC) No 1555/96 is replaced by the Annex hereto.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply from 1 September 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 2 August 2002. | [
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COMMISSION DECISION
of 20 October 2008
approving certain national programmes for the control of Salmonella in flocks of broilers of Gallus gallus
(notified under document number C(2008) 5699)
(Text with EEA relevance)
(2008/815/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Regulation (EC) No 2160/2003 of the European Parliament and of the Council of 17 November 2003 on the control of Salmonella and other specified food-borne zoonotic agents (1), and in particular Article 6(2) thereof,
Whereas:
(1)
The purpose of Regulation (EC) No 2160/2003 is to ensure that proper and effective measures are taken to detect and control Salmonella and other zoonotic agents at all relevant stages of production, processing and distribution, particularly at the level of primary production, in order to reduce their prevalence and the risk they pose to public health.
(2)
That Regulation provides that Community targets are to be established for the reduction of the prevalence in certain animal populations of zoonoses and zoonotic agents listed in Annex I thereto.
(3)
A Community target was established for the reduction of the prevalence of Salmonella enteritidis and Salmonella typhimurium in broilers at the level of primary production by Commission Regulation (EC) No 646/2007 of 12 June 2007 implementing Regulation (EC) No 2160/2003 of the European Parliament and of the Council as regards a Community target for the reduction of the prevalence of Salmonella enteritidis and Salmonella typhimurium in broilers (2).
(4)
In order to achieve the Community target Member States are to establish national programmes for the control of Salmonella in flocks of broilers of Gallus gallus and submit them to the Commission in accordance with Regulation (EC) No 2160/2003.
(5)
Certain Member States have submitted such programmes, which were found to comply with the relevant Community veterinary legislation and in particular with Regulation (EC) No 2160/2003.
(6)
Those national control programmes should therefore be approved.
(7)
The measures provided for in this Decision are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS DECISION:
Article 1
The national programmes for the control of Salmonella in flocks of broilers of Gallus gallus submitted by the Member States listed in the Annex are approved.
Article 2
This Decision shall apply from 1 December 2008.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 20 October 2008. | [
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COMMISSION DECISION of 14 December 1993 concerning the grant of assistance from the cohesion financial instrument to the project concerning the improvement of Runway A of the Athens airport in Greece No CF: 93/09/65/002 (Only the Greek text is authentic) (94/543/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 792/93 of 30 March 1993 establishing a cohesion financial instrument (1), and in particular Article 8 (6) thereof,
Whereas Article 1 of Regulation (EEC) No 792/93 establishes a cohesion financial instrument to provide Community support for projects in the fields of the environment and trans-European transport infrastructure networks;
Whereas pursuant to Article 9 of Regulation (EEC) No 792/93 certain provisions of Titles VI and VII of Council Regulation (EEC) No 4253/88 of 19 December 1988 concerning the provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (2), as amended by Regulation (EEC) No 2082/93 (3), are to apply, mutatis mutandis;
Whereas Article 2 of Regulation (EEC) No 792/93 defines the types of measure for which the cohesion financial instrument may provide assistance;
Whereas Article 10 of Regulation (EEC) No 792/93 requires the Member States to ensure that adequate publicity is given to the operations of the financial instrument and that the measures which are described in Annex V to this Decision are undertaken;
Whereas on 2 July 1993 Greece submitted an application for assistance from the cohesion financial instrument for the project concerning the improvement of Runway A of Athens airport;
Whereas that application concerns a project which is eligible under the terms of Article 2 of Regulation (EEC) No 792/93;
Whereas the application for assistance contains all the information required by Article 8 (4) of the Regulation and satisfies the criteria set out in Article 8 (3) and (5) of the Regulation;
Whereas the project is a transport infrastructure project of common interest;
Whereas Article 1 of the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (4), as last amended by Council Regulation (Euratom, ECSC, EEC) No 610/90 (5), states that the legal commitments entered into for measures extending over more than one financial year shall contain a time limit for implementation which must be specified to the recipient in due form when the aid is granted;
Whereas pursuant to Article 9 of Regulation (EEC) No 792/93, the Commission and the Member State will ensure that there is evaluation and systematic monitoring of the project;
Whereas the financial implementation provisions, monitoring and assessment are specified in Annexes III and IV to this Decision; whereas failure to comply with those provisions may result in suspension or reduction of the assistance granted pursuant to
Article 9
(3) of Regulation (EEC) No 792/93;
Whereas all the other conditions laid down, have been complied with,
HAS ADOPTED THIS DECISION:
Article 1
The project situated in Greece as described in Annex I hereto is hereby approved for the period from 1 January 1993 to 31 March 1994.
Article 2
1. The maximum eligible expenditure to be taken as the basis for this Decision shall be ECU 1 509 000.
2. The rate of Community assistance granted to the project shall be fixed at 85 %.
3. The maximum amount of the contribution from the cohesion financial instrument shall be fixed at ECU 1 282 650.
4. The contribution is committed from the 1993 budget.
Article 3
1. Community assistance shall be based on the financial plan for the project set out in Annex II.
2. Commitments and payments of Community assistance granted to the project shall be made in accordance with Article 9 of Regulation (EEC) No 792/93 and as specified in Annex III.
3. The amount of the first advance payment shall be fixed at ECU 658 000.
Article 4
1. Community assistance shall cover expenditure on the project for which legally binding arrangements have been made in Greece and for which the requisite finance has been specifically allocated to works to be completed not later than 31 March 1994.
2. Expenditure incurred before 1 January 1993 shall not be eligible for assistance.
3. The closing date for the completion of national payments on the project is fixed not later than 12 months after the date mentioned in subparagraph 1.
Article 5
1. The project shall be carried out in accordance with Community policies, and in particular with Articles 7, 30, 52 and 59 of the Treaty, as well as with Community law, in particular with the Directives coordinating public procurement procedures.
2. This Decision shall not prejudice the right of the Commission to commence infringement proceedings pursuant to Article 169 of the Treaty.
Article 6
Systematic monitoring and assessment of the project take place in accordance with the provisions set out in Annex IV hereto.
Article 7
The Member State concerned shall ensure adequate publicity for the project as specified in Annex V.
Article 8
Each Annex to this Decision shall form an integral part of it.
Article 9
Failure to comply with the provisions of this Decision or its Annexes may entail a reduction or suspension of assistance in accordance with the provisions set out in Annex VI.
Article 10
This Decision is addressed to the Hellenic Republic.
Done at Brussels, 14 December 1993. | [
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(2) OJ No L 377, 31. 12. 1987, p. 34.
(3) OJ No L 123, 5. 6. 1971, p. 7.
(4) OJ No L 160, 17. 7. 1971, p. 16.
COMMISSION REGULATION (EEC) No 870/88 of 30 March 1988 providing for the granting of aid for the private storage of short flax fibres and of hemp fibres
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1308/70 of 29 June 1970 on the common organization of the market in flax and hemp (1), as last amended by Regulation (EEC) No 3995/87 (2), and in particular Article 5 (1) thereof,
Whereas Article 5 of Regulation (EEC) No 1308/70 provides for the granting of private storage aid when the supply of flax fibres shows a temporary imbalance when compared with foreseeable demand; whereas Council Regulation (EEC) No 1172/71 of 3 June 1971 laying down general rules concerning private storage aid for flax and hemp fibres (3) specifies the principal items to be taken into account to ascertain the existence of such an imbalance, as well as the recipients;
Whereas, during the current marketing year, Community production and imports of short flax and of hemp fibres are likely to be such as to suggest that the quantities available will be higher than in the previous marketing year;
Whereas during recent months the demand for fibres on the part of Community and of third country users is down on last year; whereas that situation threatens to continue owing to the current crisis in the dry spinning of flax and of the paper-making industry, the most important outlets for such fibres;
Whereas a feature of the market situation has for some time been a market fall in prices for such fibres; whereas that downward trend is likely to continue owing to the foreseeable development of demand for the fibres in question;
Whereas the imblance on the market is basically due to the poor weather conditions in the summer of 1987, which led to an abnormally high yield of short flax fibres; whereas a normal yield for such fibres may be anticipated for the forthcoming harvest; whereas, on that assumption and on account of the foreseeable maintenance of areas sown, a fall in the production of short flax fibres is to be anticipated in the forthcoming marketing year; whereas it may be expected that the balance between the supply of short flax fibres and their foreseeable demand will be restored towards the beginning of the coming marketing year; whereas, as hemp fibres have the same outlet, the restoration of balance will be reflected on the market for hemp fibres;
Whereas an assessment of the market situation, of which the main points are set out above, thus leads to the conclusion that a temporary imbalance does exist between the supply of short flax fibres and of hemp fibres and the foreseeable demand for such fibres; whereas, in those circumstances, aid for the private storage of such fibres should be granted in accordance with Commission Regulation (EEC) No 1524/71 of 16 July 1971 laying down detailed rules concerning private storage aid for flax and hemp fibres (4);
Whereas the maximum quantity which may be covered by contracts should be specified taking into account the need on the one hand to remove the surplus from the market gradually and on the other to simplify the administration of the system of storage aids;
Whereas the temporary imbalance referred to above is likely to last until the beginning of the next harvest; whereas under those conditions the term of such contracts should be set at six months;
Whereas, pursuant to Article 8 (2) (b) of Regulation (EEC) No 1172/71, the term of existing contracts may in certain circumstances be curtailed; whereas provision should therefore be made, in addition to the aid to be paid, where the obligations under the contracts are fulfilled, for the deductions to be made where the storage aid is thus reduced;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Flax and Hemp,
HAS ADOPTED THIS REGULATION:
Article 1 Intervention agencies of producer Member States shall grant private storage aid for short flax fibres and for hemp fibres of Communty origin pursuant to the provisions of Regulation (EEC) No 1524/71 and of this Regulation.
Article 2 For the purposes of this Regulation:
(a) ´short flax fibres' or ´flax tow' means flax fibres corresponding to CN code 5301 30 10;
(b) ´hemp fibres' means hemp corresponding to CN code 5302 90 00 other than waste.
Article 3 1. The maximum quantity per contract shall be 200 tonnes.
2. Contracts may be concluded only with persons in possession of the product on 31 December 1987.
Article 4 1. Without prejudice to Article 8 (2) (b) of Regulation (EEC) No 1172/71, contracts shall be concluded for a term of six months.
2. Contracts must be concluded not later than 6 May 1988.
Article 5 1. The aid shall be 1 ECU per 100 kilograms per month.
2. Should Article 8 (2) (b) of Regulation (EEC) No 1172/71 be applied, the aid shall be reduced in proportion to the reduction in the term of the contract.
Article 6 For the purposes of this Regulation a month means a period of 30 days.
Article 7 This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 March 1988. | [
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*****
COMMISSION DECISION
of 9 December 1982
on the implementation of the reform of agricultural structures in Denmark pursuant to Council Directive 72/159/EEC
(Only the Danish text is authentic)
(82/873/EEC)
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 72/159/EEC of 17 April 1972 on the modernization of farms (1), as last amended by Directive 81/528/EEC (2), and in particular Article 18 (3) thereof,
Whereas on 4 August 1982 the Danish Government pursuant to Article 17 (4) of Directive 72/159/EEC communicated the Proclamation of the Ministry of Agriculture on the procuration of the modernization of farms;
Whereas Article 18 (3) of Directive 72/159/EEC requires the Commission to determine whether, having regard to the abovementioned submission, the existing provisions for the implementation in Denmark of Directive 72/159/EEC continue to satisfy the conditions for financial contribution by the Community to common measures within the meaning of Article 15 of Directive 72/159/EEC;
Whereas the EAGGF Committee has been consulted on the financial aspects;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Agricultural Structure,
HAS ADOPTED THIS DECISION:
Article 1
The existing Danish provisions implementing Directive 72/159/EEC, as now applicable in the light of the Proclamation of the Ministry of Agriculture as notified on 4 August 1982 by the Danish Government, continue to satisfy the conditions for financial contribution by the Community to common measures within the meaning of Article 15 of Directive 72/159/EEC.
Article 2
This Decision is addressed to the Kingdom of Denmark.
Done at Brussels, 9 December 1982. | [
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COMMISSION REGULATION (EC) No 296/2005
of 23 February 2005
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables (1), and in particular Article 4(1) thereof,
Whereas:
(1)
Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2)
In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 24 February 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 February 2005. | [
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COMMISSION REGULATION (EC) No 423/2005
of 14 March 2005
fixing Community producer and import prices for carnations and roses with a view to the application of the arrangements governing imports of certain floricultural products originating in Jordan
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 4088/87 of 21 December 1987 fixing conditions for the application of preferential customs duties on imports of certain flowers originating in Cyprus, Israel, Jordan, Morocco and the West Bank and the Gaza Strip (1), and in particular Article 5(2)(a) thereof,
Whereas:
(1)
Under Articles 2(2) and 3 of Regulation (EEC) No 4088/87, Community import and producer prices are fixed each fortnight for uniflorous (bloom) carnations, multiflorous (spray) carnations, large-flowered roses and small-flowered roses and apply for two-week periods. Under Article 1(b) of Commission Regulation (EEC) No 700/88 of 17 March 1988 laying down detailed rules for the application of the arrangements for the import into the Community of certain floricultural products originating in Cyprus, Israel, Jordan, Morocco and the West Bank and the Gaza Strip (2), those prices are determined for two-week periods on the basis of weighted prices provided by the Member States.
(2)
Those prices should be fixed immediately so the customs duties applicable can be determined.
(3)
Following the accession of Cyprus to the European Union on 1 May 2004, it is no longer necessary to fix import prices for Cyprus.
(4)
Likewise, it is no longer necessary to fix import prices for Israel, Morocco and the West Bank and the Gaza Strip, in order to take account of the agreements approved by Council Decisions 2003/917/EC of 22 December 2003 on the conclusion of an Agreement in the form of an Exchange of Letters between the European Community and the State of Israel concerning reciprocal liberalisation measures and the replacement of Protocols 1 and 2 to the EC-Israel Association Agreement (3), 2003/914/EC of 22 December 2003 on the conclusion of an Agreement in the form of an Exchange of Letters between the European Community and the Kingdom of Morocco concerning reciprocal liberalisation measures and the replacement of Protocols 1 and 3 to the EC-Morocco Association Agreement (4) and 2005/4/EC of 22 December 2004 on the conclusion of the Agreement in the form of an Exchange of Letters between the European Community and the Palestine Liberation Organisation (PLO) for the benefit of the Palestinian Authority of the West Bank and the Gaza Strip concerning reciprocal liberalisation measures and the replacement of Protocols 1 and 2 to the EC-Palestinian Authority Interim Association Agreement (5).
(5)
The Commission must adopt these measures in between the meetings of the Management Committee for Live Plants and Floriculture Products,
HAS ADOPTED THIS REGULATION:
Article 1
The Community producer and import prices for uniflorous (bloom) carnations, multiflorous (spray) carnations, large-flowered roses and small-flowered roses as referred to in Article 1 of Regulation (EEC) No 4088/87 shall be as set out in the Annex hereto for the period from 16 to 29 March 2005.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 14 March 2005. | [
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COUNCIL DIRECTIVE 92/104/EEC
of 3 December 1992
on the minimum requirements for improving the safety and health protection of workers in surface and underground mineral-extracting industries (twelfth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 118a thereof,
Having regard to the proposal from the Commission (1), drawn up after consultation with the Safety and Health Commission for the Mining and Other Extractive Industries,
In cooperation with the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas Article 118a of the Treaty provides that the Council shall adopt, by means of Directives, minimum requirements for encouraging improvements, especially in the working environment, to guarantee a better level of protection of the safety and health of workers;
Whereas, pursuant to that Article, such Directives must avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings;
Whereas the improvement of workers' safety, hygiene and health at works is an objective which should not be subordinated to purely economic considerations;
Whereas Council Directive 89/654/EEC of 30 November 1989 concerning the minimum safety and health requirements for the workplace (first individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC) (4) does not apply to the extractive industries;
Whereas compliance with the minimum requirements designed to guarantee a better standard of safety and health for surface and underground mineral-extracting industries is essential to ensure the safety and health of workers;
Whereas surface and underground mineral-extracting industries constitute an area of activity likely to expose workers to particularly high levels of risk;
Whereas this Directive is an individual Directive within the meaning of Article 16 (1) of Council Directive 89/391/EEC of 12 June 1989 on the introduction of measures to encourage improvements in the safety and health of workers at work (5); whereas, therefore, the provisions of the said Directive apply in full to surface and underground mineral-extracting industries without prejudice to more stringent and/or specific provisions contained in this Directive;
Whereas the ancillary surface installations of surface and underground mineral-extracting industries which are not essential to the surface and underground mineral-extracting industries as defined in Article 2 (a) of this Directive are subject to the provisions of Directive 89/654/EEC;
Whereas, on 3 November 1992, the Council adopted Directive 92/91/EEC on the minimum requirements for improving the safety and health protection of workers in the mineral-extracting industries through drilling (eleventh individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC) (6);
Whereas this Directive is a practical contribution towards creating the social dimension of the internal market,
HAS ADOPTED THIS DIRECTIVE:
SECTION I
GENERAL PROVISIONS
Article 1
Subject
1. This Directive, which is the twelfth individual Directive within the meaning of Article 16 (1) of Directive 89/391/EEC, lays down minimum requirements for the safety and health protection of workers in the surface and underground mineral-extracting industries defined in Article 2 (a).
2. The provisions of Directive 89/391/EEC shall apply in full to the sphere referred to in paragraph 1, without prejudice to more stringent and/or specific provisions contained in this Directive.
Article 2
Definitions
For the purpose of this Directive:
(a)
surface and underground mineral-extracting industries shall mean all industries practising:
-
surface or underground extraction, in the strict sense of the word, of minerals, and/or
-
prospecting with a view to such extraction, and/or
-
preparation of extracted materials for sale, excluding the activities of processing the materials extracted,
excluding the mineral-extracting industries through drilling defined in Article 2 (a) of Directive 92/91/EEC;
(b)
workplace shall mean the whole area intended to house workstations, relating to the immediate and ancillary activities and installations of the surface or underground mineral-extracting industries, including overburden dumps and other tips and accommodation, where provided, to which workers have access in the context of their work.
SECTION II
EMPLOYERS' OBLIGATIONS
Article 3
General obligations
1. To safeguard the safety and health of workers, the employer shall take the necessary measures to ensure that:
(a)
workplaces are designed, constructed, equipped, commissioned, operated and maintained in such a way that workers can perform the work assigned to them without endangering their safety and/or health and/or those of other workers;
(b)
the operation of workplaces when workers are present takes place under the supervision of a person in charge;
(c)
work involving a special risk is entrusted only to competent staff and carried out in accordance with the instructions given;
(d)
all safety instructions are comprehensible to all the workers concerned;
(e)
appropriate first-aid facilities are provided;
(f)
any relevant safety drills are performed at regular intervals.
2. The employer shall ensure that a document concerning safety and health, hereinafter referred to as ‘safety and health document’, covering the relevant requirements laid down in Articles 6, 9 and 10 of Directive 89/391/EEC, is drawn up and kept up to date.
The safety and health document shall demonstrate in particular that:
-
the risks to which workers at the workplace are exposed have been determined and assessed,
-
adequate measures will be taken to attain the aims of this Directive,
-
the design, use and maintenance of the workplace and of the equipment are safe.
The safety and health document must be drawn up before work starts and be revised if the workplace has undergone major changes, extensions or conversions.
3. Where workers from several undertakings are present at the same workplace, each employer shall be responsible for all matters under his control.
The employer who, in accordance with national laws and/or practices, is in charge of the workplace, shall coordinate the implementation of all the measures concerning the safety and health of the workers and shall state, in his safety and health document, the aim of that coordination and the measures and procedures for implementing it.
The coordination shall not affect the responsability of the individual employers as provided for in Directive 89/391/EEC.
4. The employer shall report any serious and/or fatal occupational accidents and situations of serious danger to the competent authorities as soon as possible.
Article 4
Protection from fire, explosions and health-endangering atmospheres
The employer shall take measures and precautions appropriate to the nature of the operation:
-
to avoid, detect and combat the starting and spread of fires and explosions, and
-
to prevent the occurrence of explosive and/or health-endangering atmospheres.
Article 5
Escape and rescue facilities
The employer shall provide and maintain appropriate means of escape and rescue in order to ensure that workers have adequate opportunities for leaving the workplaces promptly and safely in the event of danger.
Article 6
Communication, warning and alarm systems
The employer shall take the requisite measures to provide the necessary warning and other communication systems to enable assistance, escape and rescue operations to be launched immediately if the need arises.
Article 7
Keeping workers informed
1. Without prejudice to Article 10 of Directive 89/391/EEC, workers and/or their representatives shall be informed of all measures to be taken concerning safety and health at workplaces, and in particular of those relating to the implementation of Articles 3 to 6.
2. The information must be comprehensible to the workers concerned.
Article 8
Health surveillance
1. To ensure that workers receive health surveillance appropriate to the health and safety risks they incur at work, measures shall be introduced in accordance with national law and/or practices.
2. The measures referred to in paragraph 1 shall be such that each worker shall be entitled to, or shall undergo, health surveillance before being assigned to duties related to the activities referred to in Article 2 and subsequently at regular intervals.
3. Health surveillance may be provided as part of a national health system.
Article 9
Consultation of workers and workers' participation
Consultation and participation of workers and/or of their representatives shall take place in accordance with Article 11 of Directive 89/391/EEC on the matters covered by this Directive.
Article 10
Minimum requirements for safety and health
1. Workplaces used for the first time after the date on which this Directive is brought into effect as referred to in Article 13 (1) must satisfy the minimum safety and health requirement laid down in the Annex.
2. Workplaces already in use before the date on which this Directive is brought into effect as referred to in Article 13 (1) must satisfy the minimum safety and health requirements laid down in the Annex as soon as possible and at the latest nine years after that date.
3. When workplaces undergo changes, extensions and/or conversions after the date on which this Directive is brought into effect as referred to in Article 13 (1), the employer shall take the measures necessary to ensure that those changes, extensions and/or conversions are in compliance with the corresponding minimum requirements laid down in the Annex.
SECTION III
OTHER PROVISIONS
Article 11
Adjustments to the Annex
Purely technical adjustments to the Annex in line with:
-
the adoption of Directive in the field of technical harmonization and standardization concerning surface or underground mineral-extracting industries,
and/or
-
technical progress, changes in international regulations or specifications, and new findings concerning the surface or underground mineral-extracting industries,
shall be adopted in accordance with the procedure laid down in Article 17 of Directive 89/391/EEC.
Article 12
Mineral-extraction by dredging
Member States shall be entitled not to apply this Directive to mineral-extraction by dredging provided that they ensure the protection of the workers concerned in line with the general principles of the protection of the safety and health of workers laid down in this Directive, taking into account the specific risks involved in mineral-extraction by dredging.
Article 13
Final provisions
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive not later than 24 months after its adoption. They shall forthwith inform the Commission thereof.
2. When Member States adopt the measures referred to in paragraph 1, the measures shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by Member States.
3. Member States shall communicate to the Commission the texts of the provisions of national law which they have already adopted, or are to adopt, in the field governed by this Directive.
4. Member States shall report to the Commission every five years on the practical implementation of this Directive, indicating the views of employers and workers.
The Commission shall inform the European Parliament, the Council, the Economic and Social Committee, the Safety and Health Commission for the Mining and Other Extractive Industries and the Advisory Committee on Safety, Hygiene and Health Protection at Work thereof.
Article 14
This Directive is addressed to the Member States. | [
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Regulation (EC) No 1804/2003 of the European Parliament and of the Council
of 22 September 2003
amending Regulation (EC) No 2037/2000 as regards the control of halon exported for critical uses, the export of products and equipment containing chlorofluorocarbons and controls on bromochloromethane
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 175(1) thereof,
Having regard to the proposal from the Commission(1),
Having regard to the opinion of the European Economic and Social Committee(2),
Following consultation of the Committee of the Regions,
Acting in accordance with the procedure laid down in Article 251 of the Treaty(3),
Whereas:
(1) In applying Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer(4), a number of issues have emerged that need to be addressed through amendments to that Regulation. These issues that relate to the effective and safe implementation of that Regulation have been discussed with the Member States in the Management Committee under that Regulation. This Regulation concerns four amendments to Regulation (EC) No 2037/2000.
(2) Under Article 4(4)(iv) of Regulation (EC) No 2037/2000, the Commission is mandated to review each year the critical uses of halon listed in Annex VII to that Regulation. However, that Regulation does not provide, in the context of these reviews, for the establishment of time-frames for the eventual phasing out of these critical uses in the light of the identification and use of adequate alternatives. The first amendment to that Regulation provides for the possibility of establishing time-frames for reducing the use of halon for critical uses, taking into account the availability of technically and economically feasible alternatives or technologies that are acceptable from the standpoint of environment and health, when reviewing Annex VII to that Regulation. This should ensure that progress is made in reducing the quantity of halon for critical uses and thereby accelerate recovery of the ozone layer.
(3) The second amendment concerns exports of halon for the critical uses listed in Annex VII to Regulation (EC) No 2037/2000. From 1 January 2004, that Regulation will permit only halon used for the purposes listed in its Annex VII to remain installed for firefighting in the European Community. These uses are deemed "critical" as they currently have no technically and economically feasible alternatives. Any equipment containing halon that is not listed in Annex VII is therefore deemed non-critical. All non-critical installations of halon should be decommissioned by 31 December 2003. Decommissioned halon should be allowed to be stored for critical uses, exported from critical use storage or destroyed.
(4) Article 11(1)(d) of Regulation (EC) No 2037/2000 permits exports of "products and equipment containing halon, to satisfy critical uses listed in Annex VII". That Article should be amended to allow bulk halon for export for critical uses until 31 December 2009 as long as it is obtained from recovered, recycled and reclaimed halon that originates from storage facilities authorised or operated by the competent authority. A review of exports of bulk halon should be called for with a view to banning exports earlier than 31 December 2009, if appropriate. Exports of halon for critical uses should be prohibited after 31 December 2003 if the halon is not from facilities authorised or operated by the competent authority to store halon for critical uses.
(5) The Commission should be responsible for authorising exports for halon exported in products and equipment for critical uses. The Commission should only authorise these exports once the competent authority of the relevant Member State has verified that the exports are for one or more of the specific critical uses listed in Annex VII to Regulation (EC) No 2037/2000. In addition, the exporter should be required to report actual exports at the end of the year.
(6) Member States should report annually on controlled substances including halon that are recovered, recycled, reclaimed or destroyed. Currently, Regulation (EC) No 2037/2000 mandates reporting by 31 December 2001 rather than annually, whereas annual reports will be important in the future for determining progress, especially as regards the destruction of halon that is surplus to the critical use requirements.
(7) The third amendment concerns the export of controlled substances or products containing controlled substances. The export of controlled substances or products containing controlled substances should be prohibited. This ban will encourage the recovery and destruction of such controlled substances in accordance with Article 16 of Regulation (EC) No 2037/2000. The major focus is to stop the growing export trade in used refrigeration and air-conditioning equipment, in particular domestic refrigerators, freezers and building insulation foam, containing CFCs, to developing countries. In the absence of destruction facilities in developing countries, CFCs will ultimately leak into the atmosphere and cause damage to the ozone layer. In addition, developing countries are now starting to phase out CFCs and many have indicated that they do not wish to be recipients of second-hand products and equipment that contain CFCs.
(8) Regulation (EC) No 2037/2000 applies not only to refrigeration and air-conditioning equipment but also to all products and equipment containing insulating foam or integral skin foam which were produced with CFCs. This could mean, for instance, that second-hand aircraft and vehicles containing rigid insulating foam, or integral skin foam blown with CFCs, could not be exported from the European Community. Since it was the intention of that Regulation to ban the export of used refrigeration and air-conditioning equipment containing CFCs, and not other products and equipment containing foam blown with CFCs, it is appropriate to amend that Regulation to exclude off-target products containing CFCs.
(9) The fourth amendment concerns the provisions on new substances as set out in Article 22 and Annex II to Regulation (EC) No 2037/2000. That Regulation does not provide the same level of control for the new substance indicated in Annex II, bromochloromethane, as is applied to other controlled substances and thereby the European Community is not fully meeting all its obligations under the Montreal Protocol. In order to redress this situation, it is necessary that the provisions applying to controlled substances are also applied to bromochloromethane.
(10) The amendments to Regulation (EC) No 2037/2000 are fully in line with its environmental objectives, which include further protecting the ozone layer where possible, reducing global production of ozone depleting substances (ODS), promoting safe practices for the transport of ODS, ensuring mandatory monitoring of any exports, and providing legal clarification where necessary,
HAVE ADOPTED THIS REGULATION:
Article 1
Regulation (EC) No 2037/2000 is hereby amended as follows:
1. in Article 1, the first paragraph shall be replaced by the following:"This Regulation shall apply to the production, importation, exportation, placing on the market, use, recovery, recycling and reclamation and destruction of chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane, methyl bromide, hydrobromofluorocarbons, hydrochlorofluorocarbons and bromochloromethane, to the reporting of information on these substances and to the importation, exportation, placing on the market and use of products and equipment containing those substances.";
2. Article 2 shall be amended as follows:
(a) the fourth indent shall be replaced by the following:
"- 'controlled substances' means chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane, methyl bromide, hydrobromofluorocarbons, hydrochlorofluorocarbons and bromochloromethane, whether alone or in a mixture, and whether they are virgin, recovered, recycled or reclaimed. This definition shall not cover any controlled substance which is in a manufactured product other than a container used for the transportation or storage of that substance, or insignificant quantities of any controlled substance, originating from inadvertent or coincidental production during a manufacturing process, from unreacted feedstock, or from use as a processing agent which is present in chemical substances as trace impurities, or that is emitted during product manufacture or handling,";
(b) the following indent shall be inserted after the eleventh indent:
"- 'bromochloromethane' means the controlled substance indicated in Group IX of Annex I";
3. the following point shall be added to Article 3(1):
"(g) bromochloromethane";
4. Article 4 shall be amended as follows:
(a) the following point shall be added to paragraph 1:
"(g) bromochloromethane";
(b) in paragraph 4, point (iv) shall be replaced by the following:
"(iv) Paragraph 1(c) shall not apply to the placing on the market and use of halons that have been recovered, recycled or reclaimed in existing fire protection systems until 31 December 2002 or to the placing on the market and use of halons for critical uses as set out in Annex VII. Each year the competent authorities of the Member States shall notify to the Commission the quantities of halons used for critical uses, the measures taken to reduce their emissions and an estimate of such emissions, and the current activities to identify and use adequate alternatives. Each year the Commission shall review the critical uses listed in Annex VII and, if necessary, adopt modifications and, where appropriate, time-frames for phase-out, taking into account the availability of both technically and economically feasible alternatives or technologies that are acceptable from the standpoint of environment and health, in accordance with the procedure referred to in Article 18(2).";
(c) paragraph 6 shall be replaced by the following:
"6. The importation and placing on the market of products and equipment containing chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane, hydrobromofluorocarbons and bromochloromethane shall be prohibited, with the exception of products and equipment for which the use of the respective controlled substance has been authorised in accordance with the second subparagraph of Article 3(1) or is listed in Annex VII. Products and equipment shown to be manufactured before the entry into force of this Regulation shall not be covered by this prohibition.";
5. Article 6(1) shall be replaced by the following:
"1. The release for free circulation in the Community or inward processing of controlled substances shall be subject to the presentation of an import licence. Such licences shall be issued by the Commission after verification of compliance with Articles 6, 7, 8 and 13. The Commission shall forward a copy of each licence to the competent authority of the Member State into which the substances concerned are to be imported. Each Member State shall appoint a competent authority for that purpose. Controlled substances listed in groups I, II, III, IV, V and IX as listed in Annex I shall not be imported for inward processing.";
6. Article 11(1) shall be amended as follows:
(a) the introductory part of the first subparagraph shall be replaced by the following:
"1. Exports from the Community of chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane, hydrobromofluorocarbons and bromochloromethane or products and equipment, other than personal effects, containing those substances or whose continuing function relies on supply of those substances shall be prohibited. This prohibition shall not apply to exports of:";
(b) point (d) shall be replaced by the following:
"(d) recovered, recycled and reclaimed halon stored for critical uses in facilities authorised or operated by the competent authority to satisfy critical uses listed in Annex VII until 31 December 2009, and products and equipment containing halon to satisfy critical uses listed in Annex VII. By 1 January 2005, the Commission shall undertake a review of exports of such recovered, recycled and reclaimed halon for critical uses and, in accordance with the procedure referred to in Article 18(2), shall take a decision, if appropriate, to prohibit such exports earlier than 31 December 2009;";
(c) the following point shall be added:
"(g) used products and equipment that contain rigid insulating foam or integral skin foam which have been produced with chlorofluorocarbons. This exemption does not apply to:
- refrigeration and air-conditioning equipment and products;
- refrigeration and air-conditioning equipment and products which contain chlorofluorocarbons used as refrigerants, or whose continuing function relies on the supply of chlorofluorocarbons used as refrigerants, in other equipment and products;
- building insulation foam and products.";
7. the following paragraph shall be added to Article 11:
"4. From 31 December 2003, exports from the Community of halon for critical uses not from storage facilities authorised or operated by the competent authority to store halon for critical uses shall be prohibited.";
8. Article 12(1) shall be replaced by the following:
"1. Exports from the Community of controlled substances shall be subject to authorisation. Such export authorisation shall be issued by the Commission to undertakings for the period 1 January to 31 December 2001 and for each 12-month period thereafter after verification of compliance with Article 11. Provisions governing the export authorisation of halon as a controlled substance are set out in paragraph 4. The Commission shall forward a copy of each export authorisation to the competent authority of the Member State concerned.";
9. the following paragraph shall be added to Article 12:
"4. Exports from the Community of halon, and products and equipment containing halon, to satisfy critical uses listed in Annex VII shall be subject to authorisation for the period 1 January to 31 December 2004 and each 12-month period thereafter. Such export authorisation shall be issued by the Commission to the exporter after verification of compliance with Article 11(1)(d) by the competent authority of the Member State concerned. An application for an export authorisation shall record:
- the name and address of the exporter,
- a commercial description of the export,
- the total quantity of halon,
- the country/countries of final destination of the products and equipment,
- a declaration that the halon is to be exported for a specific critical use listed in Annex VII,
- any further information deemed necessary by the competent authority.";
10. Article 16(6) shall be replaced by the following:
"6. Member States shall report to the Commission by 31 December 2001, and for each 12-month period thereafter, on the systems established to promote the recovery of used controlled substances, including the facilities available and the quantities of used controlled substances recovered, recycled, reclaimed or destroyed.";
11. Article 19 shall be amended as follows:
(a) the following paragraph shall be added:
"(4a) Every year before 31 March, the exporter shall communicate to the Commission, sending a copy of the data to the competent authority of the Member State concerned, the records provided by each applicant in accordance with Article 12(4), in respect of the period 1 January to 31 December of the preceding year.";
(b) paragraph 6 shall be replaced by the following:
"6. The Commission may, in accordance with the procedure referred to in Article 18(2), modify the reporting requirements laid down in paragraphs 1 to 4, to meet commitments under the Protocol or to improve the practical application of those reporting requirements.";
12. in Annex I the following words shall be added after Group VIII:
In the column headed "Group" the words "Group IX" are inserted, in the column headed "Substance" the words "CH2BrC1 (halon 1011 bromochloromethane)" are inserted and in the column headed "Ozone-depleting potential" the number "0,12" is inserted;
13. Annex II shall be deleted.
Article 2
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 22 September 2003. | [
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COUNCIL REGULATION (EEC) No 3330/82 of 3 December 1982 on the application of Decision No 2/82 of the EEC-Switzerland Joint Committee - Community transit - amending the Agreement between the European Economic Community and the Swiss Confederation on the application of the rules on Community transit
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the proposal from the Commission,
Whereas Article 16 of the Agreement between the European Economic Community and the Swiss Confederation on the application of the rules on Community transit [1] empowers the Joint Committee set up under that Agreement to adopt decisions making certain amendments to the Agreement and to its Appendices;
[1] OJ No L 294, 29.12.1972, p. 2.
Whereas the Joint Committee has decided to make certain technical amendments to the Agreement made necessary following changes in the legislation on Community transit;
Whereas these amendments are the subject of Decision No 2/82 of the Joint Committee ; whereas it is necessary to take the measures required to implement the abovementioned Decision,
HAS ADOPTED THIS REGULATION:
Article 1
Decision No 2/82 of the EEC-Switzerland Joint Committee - Community transit - amending the Agreement between the European Economic Community and the Swiss Confederation on the application of rules on Community transit shall apply in the Community.
The text of the Decision is attached to this Regulation.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 3 December 1982. | [
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COMMISSION REGULATION (EC) No 70/2007
of 25 January 2007
fixing the rates of refunds applicable to certain products from the sugar sector exported in the form of goods not covered by Annex I to the Treaty
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the market in the sugar sector (1), and in particular Article 33(2)(a) and (4) thereof,
Whereas:
(1)
Article 32(1) and (2) of Regulation (EC) No 318/2006 provides that the differences between the prices in international trade for the products listed in Article 1(1)(b), (c), (d) and (g) of that Regulation and prices within the Community may be covered by an export refund where these products are exported in the form of goods listed in Annex VII to that Regulation.
(2)
Commission Regulation (EC) No 1043/2005 of 30 June 2005 implementing Council Regulation (EC) No 3448/93 as regards the system of granting export refunds on certain agricultural products exported in the form of goods not covered by Annex I to the Treaty, and the criteria for fixing the amount of such refunds, and the criteria for fixing the amount of such refunds (2), specifies the products for which a rate of refund is to be fixed, to be applied where these products are exported in the form of goods listed in Annex VII to Regulation (EC) No 318/2006.
(3)
In accordance with the first paragraph of Article 14 of Regulation (EC) No 1043/2005, the rate of the refund per 100 kilograms for each of the basic products in question is to be fixed each month.
(4)
Article 32(4) of Regulation (EC) No 318/2006 lays down that the export refund for a product contained in goods may not exceed the refund applicable to that product when exported without further processing.
(5)
The refunds fixed under this Regulation may be fixed in advance as the market situation over the next few months cannot be established at the moment.
(6)
The commitments entered into with regard to refunds which may be granted for the export of agricultural products contained in goods not covered by Annex I to the Treaty may be jeopardised by the fixing in advance of high refund rates. It is therefore necessary to take precautionary measures in such situations without, however, preventing the conclusion of long-term contracts. The fixing of a specific refund rate for the advance fixing of refunds is a measure which enables these various objectives to be met.
(7)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sugar,
HAS ADOPTED THIS REGULATION:
Article 1
The rates of the refunds applicable to the basic products listed in Annex I to Regulation (EC) No 1043/2005 and in Article 1(1) and in point (1) of Article 2 of Regulation (EC) No 318/2006, and exported in the form of goods listed in Annex VII to Regulation (EC) No 318/2006, shall be fixed as set out in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 26 January 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 January 2007. | [
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Commission Regulation (EC) No 590/2003
of 31 March 2003
fixing Community producer and import prices for carnations and roses with a view to the application of the arrangements governing imports of certain floricultural products originating in Cyprus, Israel, Jordan, Morocco and the West Bank and the Gaza Strip
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 4088/87 of 21 December 1987 fixing conditions for the application of preferential customs duties on imports of certain flowers originating in Cyprus, Israel, Jordan, Morocco and the West Bank and the Gaza Strip(1), as last amended by Regulation (EC) No 1300/97(2), and in particular Article 5(2)(a) thereof,
Whereas:
Pursuant to Article 2(2) and Article 3 of abovementioned Regulation (EEC) No 4088/87, Community import and producer prices are fixed each fortnight for uniflorous (bloom) carnations, multiflorous (spray) carnations, large-flowered roses and small-flowered roses and apply for two-weekly periods. Pursuant to Article 1b of Commission Regulation (EEC) No 700/88 of 17 March 1988 laying down detailed rules for the application of the arrangements for the import into the Community of certain floricultural products originating in Cyprus, Israel, Jordan, Morocco and the West Bank and the Gaza Strip(3), as last amended by Regulation (EC) No 2062/97(4), those prices are determined for fortnightly periods on the basis of weighted prices provided by the Member States. Those prices should be fixed immediately so the customs duties applicable can be determined. To that end, provision should be made for this Regulation to enter into force immediately,
HAS ADOPTED THIS REGULATION:
Article 1
The Community producer and import prices for uniflorous (bloom) carnations, multiflorous (spray) carnations, large-flowered roses and small-flowered roses as referred to in Article 1b of Regulation (EEC) No 700/88 for a fortnightly period shall be as set out in the Annex.
Article 2
This Regulation shall enter into force on 1 April 2003.
It shall apply from 2 to 15 April 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 31 March 2003. | [
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Council Regulation (EC) No 1603/2000
of 20 July 2000
imposing a definitive anti-dumping duty on imports of ethanolamines originating in the United States of America
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community(1), and in particular Articles 11(2) and 11(3) thereof,
Having regard to the proposal submitted by the Commission after having consulted the Advisory Committee,
Whereas:
A. PROCEDURE
1. Measures in force
(1) In February 1994, the Council imposed definitive anti-dumping duties on imports of ethanolamines originating in the United States (Regulation (EC) No 229/94(2)). The duties took the form of minimum-price-based variable duties for the three types of ethanolamines, i.e. monoethanolamine (MEA), diethanolamine (DEA) and triethanolamine (TEA).
2. Request for a review
(2) Following the publication on 23 July 1998(3) of a notice of impending expiry of the anti-dumping measures in force with regard to imports of ethanolamines originating in the USA, the Commission received a request to review these measures pursuant to Article 11(2) and 11(3) of Regulation (EC) No 384/96 (the "Basic Regulation"), i.e. a request for an expiry and interim review.
(3) The request was lodged on 30 October 1998 by the Conseil européen des fédérations de l'industrie chimique (CEFIC) on behalf of Community producers whose collective output constituted a major proportion of the total Community production of ethanolamines.
(4) The CEFIC argued that expiry of the measures would be likely to result in a continuation or recurrence of increased dumping and injury to the Community industry and that there were reasons to review the measures because they lacked effectiveness. Having determined, after consulting the Advisory Committee, that the evidence was sufficient, the Commission initiated an investigation(4) pursuant to Articles 11(2) and 11(3) of the Basic Regulation. The investigation therefore covered not only the question of what would happen if the measures were allowed to lapse (see Article 11(2)), but also whether a modification of the existing anti-dumping measures (minimum-price-based variable duties) was warranted (see Article 11(3)).
3. Investigation
(5) The Commission officially advised the Community producers supporting the request for review (the "applicant Community producers"), the exporting producers and their related importers, as well as the users known to be concerned, and gave them the opportunity to make their views known in writing and/or to request a hearing.
(6) The Commission sent questionnaires to the parties known to be concerned and received replies from the four applicant Community producers, four US exporting producers and five of their related importers. Questionnaires were also sent to a large number of users of the product; two of their replies were considered complete.
(7) One US exporting producer declared its intention to cooperate in the investigation, although it had not exported to the Community during the investigation period (IP). The interest of this producer in the investigation stemmed from its involvement in the original investigation.
(8) The Commission sought and verified all information deemed necessary for the determination of the likely continuation and recurrence of dumping and injury and the analysis of the Community interest. Verification visits were carried out at the premises of the following companies:
(a) exporting producers
Dow Chemical Company, Midland, Michigan (USA)
Huntsman Chemical Company, Houston, Texas (USA)
Union Carbide Corporation, Danbury, Connecticut (USA)
(b) importers in the Community related to the exporting producers
Huntsman Co. Belgium CVBA, Brussels, Belgium
Union Carbide Benelux, Antwerp, Belgium
Union Carbide Europe SA, Geneva, Switzerland
(c) applicant Community producers
BASF AG, Ludwigshafen, Germany
BP Chemicals Ltd, London, UK and Lavera, France
(d) Community users
Krems Chemie AG, Krems a.d. Donau, Austria
Synthesia Española SA, Barcelona, Spain
(9) The investigation of continuation and recurrence of dumping covered the period from 1 January to 31 December 1998 (the "investigation period" or "IP"). The examination of continuation and recurrence of injury covered the period from 1 January 1995 to the end of the IP (the "IIP").
B. PRODUCT CONCERNED AND LIKE PRODUCT
1. Product concerned
(10) The product concerned here is the same as that covered by the previous investigation. It is recalled that ethanolamines are obtained by making ethylene oxide react with ammonia. As a result of this synthesis, three competing reactions occur, resulting in three different types of ethanolamine: mono- (MEA), di- (DEA) and tri-ethanolamines (TEA). The proportions of the three types in the total output are determined by the production installation design, but can, to a certain extent, be controlled by the choice of the ammonia/ethylene oxide ratio. The product concerned is used as an intermediate for surfactants (used in detergents and personal care products), fertilisers, crop protection agents, corrosion inhibitors, lubrication oils, photographic chemicals, cosmetics and polyurethane, and as a gas scrubber absorption aid or additive for the cement, metal-works and paper industries. Because of the combined production process (see above), when DEA is produced, the other types of ethanolamine (MEA and TEA) are produced as well and in larger quantities.
2. Like product
(11) Production installations of the Community industry will typically produce 30-33 % DEA. Either MEA or TEA can account for as much as 54 % of total ethanolamines production. Given the combined production process, the claim of one exporting producer that the different types of ethanolamine should be treated separately with respect to the injury analysis cannot be justified.
(12) Since the imposition of the anti-dumping measures under review, the market has been characterised by strong growth in the demand for DEA, especially in the USA. This has been triggered by the use of DEA in the production of glyphosate herbicides, which are suited to crops genetically modified to be resistant to such herbicides.
(13) The product concerned imported from the country under investigation is identical in terms of physical and technical characteristics to the Community-produced product. There is no difference in use between the Community-produced products and the imported products. It has further been found that the product concerned imported from the country under investigation is identical to that sold on its domestic market. Therefore, all these products must be considered as one product.
C. LIKELIHOOD OF CONTINUATION OF DUMPING
1. Preliminary remarks
(14) Following the allegation made in the complaint that circumstances had changed since the original investigation, the level of dumping for the IP was examined.
(15) Of the four US exporting producers who replied to the questionnaire, two had significant exports to the Community during the IP, while another two declared no or only very few exports.
(16) For the exporting producer which had a small quantity of exports it was decided in the absence of any other information that a dumping margin could reasonably be based on this small volume of exports.
2. Normal value
(17) Normal value was established for each type of the product concerned, based on the price of all actual domestic sales in the USA (see Article 2(1) of the Basic Regulation: "prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country"). For product types which were not sold in representative quantities or not in the ordinary course of trade on the domestic market, the normal value was calculated in accordance with Article 2(3) of the Basic Regulation.
(18) With regard to the three US exporting producers, the domestic sales of the product under consideration were found, in accordance with Article 2(2) of the Basic Regulation, to represent more than 5 % of the sales volume of exports of the product from the USA to the Community. It was also established that for the same three exporting producers, sufficient domestic sales of the product had been made in the ordinary course of trade in accordance with Article 2(4) of the Basic Regulation to permit the prices of such sales to be used to determine normal value.
3. Export price
(19) In all cases, the imports of the product concerned were made by companies which are related to the US exporting producers. It was therefore considered that the prices of the sales from the producing companies to the importing companies were unreliable. For that reason, and in accordance with the provisions of Article 2(9) of the Basic Regulation, the export prices were constructed on the basis of the price at which the imported product was first resold to independent buyers in the Community. Allowance was made for all costs incurred between importation and resale, including commissions and a profit margin of 5 %, which was considered reasonable on the basis of information from interested parties on imports of the product concerned.
4. Comparison
(20) The normal value was compared with the export price on a transaction-by-transaction basis at ex-works level and at the same level of trade. For the purpose of ensuring a fair comparison between normal value and export price, differences in factors which were claimed and demonstrated to affect comparability (see Article 2(10) of the Basic Regulation) were taken into account. Thus, adjustments were made for inland and ocean freight, insurance, handling, loading and ancillary costs, credit costs and commissions.
(21) A comparison of normal values with export prices was made for all types covered by the present investigation. For the cooperating exporting producers, this comparison showed the existence of a weighted average dumping margin, expressed as a percentage of cif value, of 33 % for Dow Chemical, 38,2 % for Union Carbide and 40,1 % for Huntsman.
5. Lasting nature of changed circumstances
(22) The Commission examined whether the changes in dumping margins were likely to prove lasting. It was found that the lower dumping margins were largely due to increased export prices, which have applied for at least two years. For this reason, and as the export quantities involved were viewed as representative, the Commission concludes that the findings represent a lasting change in the circumstances of these imports from the USA. No evidence was submitted which contradicted these findings.
6. Conclusion
(23) The expiry review initiated under Article 11(2) of the Basic Regulation indicated that, if measures were removed, there would be a likelihood of continuation of dumping, mainly on the grounds that substantial dumping was found to exist during the IP and that it was reasonable to conclude that such dumping would continue.
(24) The Article 11(3) interim review, initiated on the basis of a request to revise measures in order to take into due account the current market conditions, concluded that the circumstances which led to the existing measures have changed significantly and that such changes are to be considered sufficiently lasting to warrant a downward revision of the dumping margins established during the original investigation.
D. DEFINITION OF THE COMMUNITY INDUSTRY
1. Total Community production
(25) The complaint was lodged on behalf of four out of the five EU ethanolamine manufacturers. One company, Union Carbide Ltd. (UK), did not participate in the investigation, nor did it support the complaint. It should be noted that this company is related to the US producer Union Carbide Corp. USA. An assessment was made, therefore, as to whether this company should be excluded from the definition of Community production in accordance with Article 4(1) of the Basic Regulation. It was found that the manufacturer concerned itself imported the dumped product in significant quantities. As there could therefore be no guarantee that the economic situation of this manufacturer was not affected by its relationship to the US producer, it was considered that it should be excluded from the determination of Community production. Total Community production therefore is accounted for by the following companies: BASF AG, Ludwigshafen, Germany; BP Chemicals Ltd, London, United Kingdom; Condea Chemie GmbH, Marl, Germany and Akzo Nobel Surface Chemistry AB, Stenungsund, Sweden.
2. Community industry
(26) The Commission sent questionnaires to the applicant Community producers and received replies from three of them. One reply that failed to provide cost of production data for the period 1995 to 1997 was accepted on the grounds that the company took over the ethanolamines business on 1 July 1998 from another company and therefore did not have access to the data. The forth producer sent only an incomplete questionnaire reply and was consequently considered a non-cooperator. The three applicant Community producers which co-operated in the investigation constitute the Community industry within the meaning of Article 4(1) of the Basic Regulation, as they represent 77,5 % of the total Community production. They are referred to below as the "Community industry".
3. Determination of the relevant Community market
(27) Part of the Community industry's production (around 28 %) is for internal, i.e. captive, use. Of this amount, the great majority (around 95 %) is for use at one Community producer's plant, earmarked and used for that sole purpose. The investigation confirmed that the applicant Community producers do not purchase the product concerned from independent parties, either inside or outside the Community, for their captive use. Ethanolamines intended for captive use are therefore not considered to be in competition with ethanolamines otherwise available in the Community, the latter being the relevant Community market for the product concerned.
E. ANALYSIS OF THE SITUATION ON THE COMMUNITY MARKET
1. Community consumption
(28) Community consumption was based on the volume of sales of the Community industry, the sales volume of the non-cooperating Community producer, Eurostat-information on the import volume and an estimate of the sales of the Community-based manufacturer related to the US exporting producer Union Carbide(5) on this market.
(29) Consumption calculated on this basis increased by 14 % during the IIP: from around 152000 tonnes in 1995 to around 172000 tonnes in the IP. This increase is attributed to DEA and TEA sales, which rose by 19 % and 21 % respectively. The demand for MEA has remained stable. MEA and DEA each represent around 29 % of overall consumption in the IP and TEA around 42 %.
2. Imports from the country concerned
(a) Volume, price trend and market share
(30) Imports from the USA increased by 14 % over the IIP, in line with the trend of overall Community consumption. However, the figures contain an underlying downward trend in DEA-imports (-38 % over the IIP), which accounted for only 12,6 % of total imports in the IP. This should be seen in light of the high DEA demand on the US domestic market. On the other hand, notwithstanding the stable demand for MEA on the Community market during the IIP, imports from the USA increased by 86 % over the same period. Imports of TEA during this period grew by 11 %.
(31) Since imports are made by related importers, prices for imports from the USA, whether established on the basis of information submitted by the exporting producers or Eurostat figures, were not deemed reliable for the purpose of establishing price trends. In order to establish more reliably the pricing behaviour of the exporting producers concerned, their related importers' resale prices were analysed - more specifically prices to industrial end-users found to be representative for overall sales. These prices declined 10 % on average from 1995 to 1996 and were found to be substantially lower than the Community industry sales prices during both those years. This trend was most pronounced for MEA, with a 14 % decrease of the resale price. Towards the end of the IIP, the resale price of TEA was back at the 1995 level, whereas DEA became 13 % more expensive and MEA was still 4 % cheaper. In the IP, the price levels of the related importers and the Community industry were comparable.
(32) The overall market share for imports from the USA is stable over the IIP at 29 %. However, the figures contain an underlying increase in market share for MEA from 17 % to 32 % and a decrease of DEA market share from 25 % to 13 %. TEA decreased slightly from 42 % to 39 %.
(b) Price behaviour of exporting producers
(33) In order to assess the price behaviour of US exporting producers, their sales as well as those of the Community industry were analysed. In a first step, sales prices to first independent customers were compared on the Community market. Given that the Community industry sells only to industrial end-users, and that these customers also cover a significant share (over 50 %) of the sales of the US exporting producers, a comparison at this level of trade was considered representative. For the determination of dumping, this comparison was made on the basis of data for the two main US exporting producers.
(34) Since all imports into the Community originating in the USA were made via related importers, the above comparison used the prices charged to the first independent buyers in the Community at an ex-related-importer level, i.e. after deduction of freight costs in the Community, discounts and rebates. The comparison showed that during the IP, the overall average price levels for imports from the USA and Community industry sales were comparable.
(35) In a second step, an analysis was made of the import prices of ethanolamines originating in the USA, i. e. the prices between the exporting producers and their related importers, as compared to the minimum prices determining the variable duties. This showed that no significant amounts of anti-dumping duties had been collected, as these import prices were significantly above minimum prices for most of the IIP.
(36) In a third step, given the relation between exporting producers and the importers, it was established for the IP whether the resale prices received by these importers from their first independent customers and the respective actual import prices reflected the related importers' costs between importation and resale. All costs actually incurred between importation and resale, such as freight from the Community border, handling, insurance, packaging, credit expenses, import duties, SGA costs and a 5 % profit margin were therefore deducted from the resale prices. This resulted in import prices constructed independently of the relationship between the exporting producers and their related importers.
(37) These constructed import prices for both exporting producers were not only significantly lower than the actual import prices declared by their related importers, but were also significantly lower than the applicable minimum prices for the various types of ethanolamine. This finding is confirmed by the fact that the related importers incurred significant financial losses during the IP. Indeed, the margins they realised between purchase price (actual import price) and resale price on the Community market were not sufficient to cover the costs incurred between importation and resale. It should be noted that the pattern established for the IP has also been observed for the remainder of the period considered, i.e. 1995 to 1997.
(38) On the basis of the above three-step analysis, it is concluded that the resale prices of US exporting producers on the Community market were in line with those of the Community industry. Furthermore, it has been found that actual import price levels were situated above the minimum prices. However, these actual import prices have not, or at least not fully, reflected the anti-dumping measures in force if account is taken of the costs incurred between importation and resale. Therefore, it can be concluded that the US exporting producers and their related importers absorbed the anti-dumping measures, at least partially, by setting artificially high actual import prices which constitute transfer prices.
3. Situation of the Community industry
(a) Production, production capacity and capacity utilisation
(39) Production increased by 38 % during the IIP, particularly from 1996 to 1997, following an expansion of capacity from roughly 117000 to 139000 tons. The increase in production, combined with the more moderate increase in capacity, improved the overall Community industry's capacity utilisation from 81,8 % to 91,1 % over the IIP.
(40) As mentioned above, the capacity installed at one Community producer's plant in 1997 accounts for around 95 % of Community production for captive purposes and was designed to serve only that purpose. The above mentioned increase in production capacity, however, is a result of this investment in captive use production as this reduced the captive use at another plant of the same company. This in turn liberated capacity for free market sales.
(b) Sales volume
(41) The sales volume of the Community industry on the Community market increased by 27 % over the IIP to approximately 96000 tons, driven by the increase of DEA and TEA sales (by 32 % and 28 % respectively) over this period.
(c) Market share
(42) The Community industry increased its market share overall from 50 % to 56 % during the period 1995 to 1997, gaining 11 % for MEA, 5 % for DEA and 3 % for TEA. Between 1997 and the IP market share overall and for TEA remained stable, increased further for DEA (from 61 % to 63 %), but fell for MEA (from 53 % to 49 %).
(d) Stocks
(43) Stocks increased by 10 % over the IIP. This increase is lower than the production increase of 38 %.
(e) Development of sales price and manufacturing cost
(44) Overall sales price dropped 17 % from 1995 to 1996. This was followed by increases in 1997 and 1998 respectively of 3 % and 9 % over 1996 prices. In contrast to the minimum prices and the situation in 1995, DEA has become the most expensive product over the IIP.
(45) Resale prices of US imports in the Community were substantially below the Community industry's sales prices in 1995 and 1996. The downward pressure of 17 % on the Community industry's sales prices from 1995 to 1996 occurred at the same time MEA imports from the USA almost doubled and the resale price of US imports of MEA dropped by 14 % to ECU 605 per tonne, lowering the Community industry's sales price by 22 % to ECU 647 per tonne.
(46) Apart from market conditions, sales prices are essentially driven by the cost of raw materials. The overall manufacturing cost dropped by 7 % from 1995 to 1996 and, compared to 1996, increased slightly by between 1 % and 2 % for the year 1997 and the IP. Over the whole period, manufacturing costs fell by 6 % but prices declined by 10 %. DEA is the only exception here: the average price fell by only 1 % while manufacturing costs decreased by 4 %.
(47) It should also be underlined that the production of ethanolamines for the Community industry is important since it allows to use own-produced upstream ethylene oxide, providing economies of scale for this upstream production process, and to use the ethanolamines as an intermediate for other products (captive use). It was claimed that purchase prices for ethylene oxide were overstated causing a downward pressure on the ethanolamines business. It was found, however, that the companies involved organise their ethylene oxide and ethanolamines businesses as separate profit centres, making cross-subsidisation unlikely, and checks were carried out as to whether the transfer price at which this raw material was incorporated in the cost of production of ethanolamines reflected market value. In all cases it was found that the transfer prices used reflected the sales prices of ethylene oxide quoted to independent customers purchasing similar quantities.
(f) Profitability
(48) Profitability has been affected by sales prices and manufacturing costs. Profits fell from 3,94 % in 1995 to loss-making levels of -8,64 % in 1996 and -8,49 % in 1997. The price recovery in the IP was insufficient to generate a profit and profitability remained negative at -1,37 %.
(g) Investments
(49) Investment in ethanolamines for the free market remained fairly stable between 1995 and 1998 at around ECU 4 million a year, except for 1996, when the figure was twice that. In that year, major changes were made to one plant after the group's captive production was taken over by another plant belonging to the same Community producer.
(h) Employment
(50) The production of ethanolamines is not a labour intensive process. Overall, employment rose by 23 % and reached 166 persons in 1998.
4. Import volumes and prices from other third countries
(51) On the basis of Eurostat information, Bulgarian export prices are lower than actual US import prices from the same source. As explained above, it should however be noted that Eurostat prices for imports originating in the US are not considered reliable. One Bulgarian producer, Burgas, has had a stable 3 % share of the Community market since 1996. Based on Eurostat information, approximately 70 % of its exports are MEA - a market share of 6 % in this segment during the IP (compared to 49 % for the Community industry and 32 % for US exporting producers).
(52) The market share of all other countries declined to 2 % across all types of ethanolamines and 6 % for MEA. However, these imports originate from a variety of sources, none of which holds a significant market share.
5. Conclusion on the situation of the Community market
(53) Production volume and capacity of the Community industry show a positive trend. Sales volumes increased, especially for DEA and TEA. Market share increased overall but dropped for MEA, when compared with 1997. Although better than in 1996 and 1997, profitability remained insufficient in 1998 because of continued pressure on sales prices. Indeed, the initial fall in sales prices from 1995 to 1996 has still not been compensated and there is still price pressure from the imports concerned.
(54) The continuation of the downward pressure on the Community industry's sales prices and the consequent negative profitability are directly linked to the pricing behaviour of the US exporting producers, in particular the absorption of the measures in force and the resulting price pressure.
F. LIKELIHOOD OF CONTINUATION OF INJURIOUS DUMPING
1. Analysis of demand for ethanolamines
(55) Because of the combined production process, the increased consumption of DEA and TEA in the Community leads to a significant supply of MEA. Upward price pressure has been most pronounced for DEA, accentuated by the gradual withdrawal by the US exporting producers from this market (illustrated by a corresponding drop in US market share from 25 % to 13 % over the IIP).
(56) At the same time, worldwide ethanolamine production capacity is further increasing in anticipation of continued growth in demand for DEA, with major producers both in the Community and in the USA investing at similar rates. High demand for DEA has led to corresponding upward price adjustments in this segment, while DEA consumption - and thus prices - during the previous investigation were low. The effect on sales prices (and consequently on profitability) of increasing capacity and increasing demand for DEA remains unclear, but the (worldwide) excess production of MEA, in particular, threatens to depress market conditions.
2. Analysis of the situation of the US exporting producers
(57) The world-wide capacity increase threatens to create excess production, especially of MEA, while the Community market, with a price level higher than other third countries, is attractive for US exporting producers. US production capacity increased by more than one third over the 1995 to 1998 period. From 1997 to the IP, capacity installed rose 19,9 % to 524000 tons for the three US producers Union Carbide, Huntsman and Dow Chemical and, although production increased by 9 %, the capacity utilisation rate fell from 90,4 % to 83 %. New capacity installed is generally aimed at DEA, bringing excess production of MEA.
(58) Furthermore, the investigation showed that US producers exported significant quantities of the product concerned to the Community throughout the period examined, indicating that the Community market is an important outlet for their production. From 1997 to the IP corresponding US exports to the Community increased by 12,4 %, whereas domestic sales increased only 4,9 % and exports to other third countries decreased by 2,7 %. During the IP, US domestic sales represented 67,1 % of total sales by the three US producers mentioned above, exports to the Community 13,6 % and exports to third countries 19,3 %.
(59) The investigation also demonstrated that US domestic prices are at a higher level than sales prices in the Community market. The higher price level in the USA can be directly attributed to the high consumption of DEA on the US market.
(60) Finally, it should be noted that South Korea has imposed measures against imports of ethanolamines from the USA. While it is not considered that the quantities involved, even if they were entirely deflected, are such as to disrupt the Community market, the fact that anti-dumping measures have been imposed shows that US exporting producers are prepared to carry out exports at dumped prices.
(61) The prices of both the Community industry and the exporting producers over the IIP have constantly been above the minimum-price-based variable anti-dumping measures. It has been shown that actual import prices do not reflect the resale prices of the related importers concerned and that import prices reflecting costs incurred between importation and resale have systematically been below minimum prices, indicating that the US exporting producers have partially absorbed the anti-dumping measures imposed. At the same time, the Community industry has not been able to recover from the negative situation it has experienced and still faces an unsatisfactory situation in terms of profits during the IP.
(62) The investigation confirmed that, as in the previous investigation period (1991 to 1992) before imposition of measures, US producers exported significant quantities onto the Community market. From 48000 tons in the previous IP, these dropped to 44000 tons at the beginning of the IIP, before rising to 51000 tons at the end. They represent 40 % of total Community production during the IP.
(63) It was found that in line with growing demand for DEA in the USA which put upward pressure on US sales prices for DEA and ethanolamines in general, a somewhat less pronounced price change was observed on the Community market. This trend in consumption has at the same time meant that MEA is produced in increasing quantities, with the risk that due to a lack of commensurate demand it will be sold at lower and lower prices. The effect on the price of TEA is expected to be less, as smaller production surpluses are predicted.
(64) One US exporting producer contended that the Community industry itself has an overcapacity of MEA that creates a downward pressure on prices. It was, however, unable to substantiate this claim. It should also be noted that one US producer alleged that the Community industry undercut its prices for DEA in 1998. The investigation showed, however, that the Community company quoted did not sell any DEA to the client mentioned.
3. Conclusion on likelihood of continuation of injurious dumping
(65) The investigation showed that, despite the anti-dumping measures in force and increased production, production capacity, consumption and sales volumes, the Community industry is still in a fragile state, in particular as far as its sales prices and profitability are concerned. The Community industry was allowed to fill the gap left by the partial retreat by US exporting producers from the DEA Community market. However, due to the partial absorption by US exporting producers of the measures in force, their excess production of MEA and the resulting growth in EU imports of MEA from the USA at dumped prices, prices for all ethanolamines remained too low to restore the profitability of the Community industry, even with anti-dumping measures.
(66) The investigation established that the imports concerned are still taking place at significantly dumped prices. It has been found that domestic US prices have increased since the previous investigation, although to a lesser extent than the prices of US exports to the Community. This has led to smaller dumping margins than those in the initial investigation, not least because of the absorption. It was further found that export quantities are significant, being equivalent to 40 % of total Community production during the IP.
(67) The Community industry has been unable to recover from the negative situation affecting it since the previous investigation; prices of imports from the USA have been below minimum prices, (given actual costs between importation and resale), thereby partially absorbing the anti-dumping measures in force and preventing the Community industry from improving its situation; capacity increases in the USA are likely to depress market conditions in the Community, in particular due to excess MEA; and the Community market, as compared to other markets, remains attractive to the US exporting producers, who continue to export significant quantities to the Community at dumped prices - it is therefore concluded that there is a likelihood of continuation of injurious dumping.
G. COMMUNITY INTEREST
1. Introduction
(68) In the previous investigation, the adoption of measures was considered not to be against the interest of the Community. The present investigation is a review, analysing a situation in which anti-dumping measures were already in place and its remit is thus to assess any undue negative impact of the measures on the parties concerned. It was therefore examined whether, despite the conclusions on the likelihood of continuation of injurious dumping, there were compelling reasons to conclude that it was not in the Community interest to maintain measures. For this purpose, and pursuant to Article 21(1) of the Basic Regulation, account was taken of the impact on all parties involved in the proceedings of maintaining the existing measures, imposing alternative measures or dropping the measures.
2. Interest of the Community industry
(69) The existing measures have not led to a price level on the Community market that would allow the Community producers to regain profitability. The investigation showed that the measures have never become fully effective - while actual import prices have been above the minimum prices set, the latter have not been reflected in related importers' resale prices. The outlook for the situation in the Community market is not favourable given the distinct possibility of an inflow of MEA, produced in recently installed production sites, and continuing pressure on prices, which in 1999 in some instances even went below set minimum prices.
(70) In view of the above, continuing measures to limit the downward pressure on ethanolamine prices would be in the interest of the Community industry.
3. Interest of users
(71) The Commission received four questionnaire replies from ethanolamines users, two of which were considered complete and were followed up by an on-site investigation. As those four users represent only 1,4 % of Community consumption during the IP, the information submitted could not be considered representative. The users argued that any increase in their cost of production should be avoided, since this affects their profitability.
(72) Information collected in the course of the investigation indicated an incidence of the purchase price of ethanolamines in the cost of production of the finished product during the IP ranging from 2,21 % to 18,82 % (the latter figure relating to an extreme case, for a product for which ethanolamine can be perfectly substituted by another unrelated chemical). The overall weighted average stands at 4,33 % of the cost of production. The maximum impact of the measures proposed is on average less than one percent and can therefore be considered limited.
(73) One additional user of the product concerned claimed that it planned to produce a chemical product, glyphosate intermediate, in the Community using DEA. This company claimed it was unable to do so because of the artificially high import prices (due to anti-dumping measures) and the absence of local (Community) supply of DEA. It should be noted here that the minimum price on which the variable duty is based was always lower than the purchase prices established for the various interested parties during the IP. This showed that this user's first claim did not reflect reality. The investigation further showed that DEA was not sufficiently available in the USA and that exports to the Community decreased as a result. It took some time for the Community producers to adapt to the increase in demand, but DEA supply has never been so short that prices were affected significantly and the company's second claim must be considered as ill-founded.
4. Conclusion on Community interest
(74) Maintaining measures would be in the interest of the Community industry in ensuring that prices, especially for MEA, are raised to a non-injurious level. The users of the product which came forward did not represent an important share of Community consumption and/or could not substantiate their claims. In any event, the incidence of measures on their cost of production is limited. On the basis of these considerations, it was concluded that there were no compelling reasons not to continue measures, in order to ensure competitive conditions of fair pricing and avoid the continuation of injury to the Community industry.
H. ANTI-DUMPING MEASURES
(75) Since it was determined that US exporting producers absorbed the measures over an extended period and the import volume remained significant, it was concluded that the underlying trends were lasting. In these circumstances, it had to be decided on which basis the investigation carried out pursuant to both Article 11(2) and 11 (3) of the Basic Regulation had to be concluded. As the measures presently in force had not led to the anticipated positive effect for the Community industry, it was decided that:
- the anti-dumping measures should be renewed,
- their form should be revised,
- their level should be adapted to the level of dumping and injury found.
(76) It should be noted here that actual import prices are used in anti-dumping proceedings to determine both dumping and injury margins. The investigation demonstrated that the actual import prices do not reflect the related importers' resale prices. Using such data would underestimate the actual dumping and injury margins for the IP. Therefore, it was concluded that the dumping and injury margins determined pursuant to Article 11(3) of the Basic Regulation needed to be based on the constructed import price.
(77) In order to calculate the injury threshold, a non-injurious sales price for the Community industry was determined, allowing for an 8 % profit margin, and compared with the US related importers' resale prices. Any difference was expressed as a percentage of the constructed CIF import value. On the basis of this methodology the underselling margins, which were lower than the corresponding dumping margins, were 10,4 % for Union Carbide Corporation, 13,9 % for Dow Chemical Company and 20,5 % for Huntsman Chemical Company. In the previous investigation, by comparison, the minimum-price-based variable duties were based on overall underselling margins of 45,2 % for Union Carbide, 53,5 % for Dow Chemical and 39,5 % for Huntsman.
(78) Specific fixed duties based on the difference between the non-injurious price and the US related importers' resale prices, amount to EUR 59,25 per tonne for Union Carbide Corporation, EUR 69,40 per tonne for Dow Chemical Company and EUR 111,25 per tonne for Huntsman Chemical Company. This type of measure is considered appropriate, as imports from the USA take place mainly through related sales companies. The residual specific fixed duty is set at EUR 111,25 per tonne.
(79) All parties concerned were informed of the essential facts and considerations on which the continuation of measures at an updated level and in an updated form is based. They were granted a period within which to make representations subsequent to disclosures.
HAS ADOPTED THIS REGULATION:
Article 1
1. A definitive anti-dumping duty is hereby imposed on imports of ethanolamines currently classifiable within CN codes ex 2922 11 00 (monoethanolamine) (TARIC code 2922 11 00 10), ex 2922 12 00 (diethanolamine) (TARIC code 2922 12 00 10) and 2922 13 10 (triethanolamine), originating in the United States of America.
2. The rate of the definitive duty applicable to the net free-at-Community-frontier price, before duty, for the following companies' products shall be as follows:
TABLE
3. Unless otherwise specified, the provisions in force concerning customs duties shall apply.
Article 2
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 July 2000. | [
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COMMISSION DECISION of 22 November 1995 on the approval of the single programming document for Community structural assistance in the region of Fyrstad concerned by Objective 2 in Sweden (Only the Swedish text is authentic) (96/125/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 4253/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (1), as last amended by Regulation (EC) No 3193/94 (2), and in particular Article 10 (1) last subparagraph thereof,
After consultation of the Advisory Committee on the Development and Conversion of Regions and the Committee pursuant to Article 124 of the Treaty,
Whereas the programming procedure for structural assistance under Objective 2 is defined in Article 9 (8) to (10) of Council Regulation (EEC) No 2052/88 of 24 June 1988 on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments (3), as last amended by Regulation (EC) No 3193/94; whereas, however, the last subparagraph of Article 5 (2) of Regulation (EEC) No 4253/88 foresees that in order to simplify and to speed up programming procedures, Member States may submit in a single programming document the information required for the regional and social conversion plan referred to in Article 9 (8) of Regulation (EEC) No 2052/88 and the information required pursuant to Article 14 (2) of Regulation (EEC) No 4253/88; whereas Article 10 (1) last subparagraph of Regulation (EEC) No 4253/88 foresees that in that case the Commission adopts a single decision in a single document covering the points referred to in Article 8 (3) and the assistance from the Funds referred to in the last subparagraph of Article 14 (3);
Whereas the Commission has established, by Decision 94/169/EC (4), an initial list of declining industrial areas concerned by Objective 2 for the period from 1994 to 1996; whereas this list has been enlarged by Decision 95/189/EC (5) as regards the zones eligible for Objective 2 in Sweden;
Whereas Article 9 (6) second subparagraph of Regulation (EEC) No 2052/88 provides that, on an exceptional basis, the Commission can accede to a request from Austria, Finland or Sweden that assistance under Objective 2 be planned and implemented for the whole period from 1995 to 1999; whereas Sweden has requested implementation of this provision and accordingly the assistance under Objective 2 will cover the period 1995 to 1999;
Whereas the Swedish Government has submitted to the Commission on 16 June 1995 the single programming document referred to in Article 5 (2) of Regulation (EEC) No 4253/88 for the region of Fyrstad; whereas this document contains the elements referred to in Article 9 (8) of Regulation (EEC) No 2052/88 and in Article 14 (2) of Regulation (EEC) No 4253/88; whereas expenditure under this single programming document is eligible as from that date;
Whereas the single programming document submitted by this Member State includes a description of the conversion priorities selected and the applications for assistance from the European Regional Development Fund (ERDF) and the European Social Fund (ESF);
Whereas, in accordance with Article 3 of Regulation (EEC) No 4253/88, the Commission is charged with ensuring, within the framework of the partnership, coordination and consistency between assistance from the Funds and assistance provided by the European Investment Bank (EIB) and the other financial instruments, including the European Coal and Steel Community (ECSC) and the other actions for structural purposes;
Whereas the EIB has been involved in the drawing up of the single programming document in accordance with the provisions of Article 8 (1) of Regulation (EEC) No 4253/88, applicable by analogy in the establishment of the single programming document; whereas it has declared itself prepared to contribute to the implementation of this document in conformity with its statutory provisions; whereas, however, it has not yet been possible to evaluate precisely the amounts of Community loans corresponding to the financial needs;
Whereas Article 2 second subparagraph of Commission Regulation (EEC) No 1866/90 of 2 July 1990 on arrangements for using the ecu for the purpose of the budgetary management of the Structural Funds (6), as last amended by Regulation (EC) No 2745/94 (7), stipulates that in the Commission Decisions approving a single programming document, the Community assistance available for the entire period and the annual breakdown thereof shall be set out in ecus at prices for the year in which each decision is taken and shall be subject to indexation; whereas this annual breakdown must be compatible with the progressive increase in the commitment appropriations shown in Annex III to Regulation (EEC) No 2052/88 as amended by the Act of Accession (8); whereas indexation is based on a single rate per year, corresponding to the rates applied annually to budget appropriations on the basis of the mechanism for the technical adjustment of the financial perspectives;
Whereas Article 1 of Council Regulation (EEC) No 4254/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the European Regional Development Fund (9), as amended by Regulation (EEC) No 2083/93 (10), defines the measures for which the ERDF may provide financial support;
Whereas Article 1 of Council Regulation (EEC) No 4255/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the European Social Fund (11), as amended by Regulation (EEC) No 2084/93 (12), defines the measures for which the ESF may provide financial support;
Whereas the single programming document has been established in agreement with the Member State concerned through the partnership defined in Article 4 of Regulation (EEC) No 2052/88;
Whereas the single programming document satisfies the conditions and includes the information required by Article 14 of Regulation (EEC) No 4253/88;
Whereas certain measures provided for in the present single programming document involve co-financing with existing aid schemes that were notified to the EFTA Surveillance Authority as existing aid on entry into force of the Agreement on the European Economic Area or have been approved by the EFTA Surveillance Authority or the Commission since 1 January 1994, or with new or altered aid schemes that have not yet been approved by the Commission; whereas the existing aid schemes will, if necessary, be brought into line with Articles 92 and 93 of the Treaty or replaced by other approved aid schemes;
Whereas the present assistance satisfies the conditions laid down in Article 13 of Regulation (EEC) No 4253/88, and so should be implemented by means of an integrated approach involving finance from more than one Fund;
Whereas Article 1 of the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (13), as last amended by Regulation (EC, Euratom, ECSC) No 2335/95 (14), states that the legal commitments entered into for measures extending over more than one financial year must contain a time limit for implementation which must be specified to the recipient in due form when the aid is granted;
Whereas Article 20 (3) of Regulation (EEC) No 4253/88 provides, subject to available funding, for a single commitment where the Community assistance granted is less than ECU 40 million for the whole programming period;
Whereas all the other conditions laid down for the grant of aid from the ERDF and the ESF have been complied with,
HAS ADOPTED THIS DECISION:
Article 1
The single programming document for Community structural assistance in the region of Fyrstad concerned by Objective 2 in Sweden, covering the period 16 June 1995 to 31 December 1999, is hereby approved.
Article 2
The single programming document includes the following essential elements:
(a) a statement of the priorities for joint action, their specific quantified objectives, an appraisal of their expected impact and their consistency with economic, social and regional policies in Sweden;
the priorities are:
1. small and medium-sized enterprises and new companies;
2. competence development;
3. business environment;
4. technical assistance;
(b) the assistance from the Structural Funds as referred to in Article 4;
(c) the detailed provisions for implementing the single programming document comprising:
- the procedures for monitoring and evaluation,
- the financial implementation provisions,
- the rules for compliance with Community policies;
(d) the procedures for verifying additionality and an initial evaluation of the latter;
(e) the arrangements for associating the environmental authorities with the implementation of the single programming document;
(f) the means available for technical assistance necessary for the preparation, implementation or adaptation of the measures concerned.
Article 3
For the purpose of indexation, the annual breakdown of the global maximal allocation foreseen for the assistance from the Structural Funds is as follows:
TABLE
Article 4
The assistance from the Structural Funds granted to the single programming document amounts to a maximum of ECU 24 million.
The procedure for granting the financial assistance, including the financial contribution from the Funds to the various priorities and measures, is set out in the financing plan and the detailed implementing provisions which form an integral part of the single programming document.
The national financial contribution envisaged, which is approximately ECU 56 million for the public sector and ECU 65 million for the private sector, may be met in part by Community loans, in particular from the ECSC and EIB.
Article 5
1. The breakdown among the Structural Funds of the total Community assistance available is as follows:
TABLE
2. The budgetary commitments at the moment of approval of the single programming document refer to the total Community assistance.
Article 6
The breakdown among the Structural Funds and the procedure for the grant of the assistance may be altered subsequently, subject to the availability of funds and the budgetary rules, in the light of adjustments decided according to the procedure laid down in Article 25 (5) of Regulation (EEC) No 4253/88.
Article 7
1. This Decision is without prejudice to the position of the Commission on notified or unnotified new or existing aid schemes that are used in implementing the measures contained in the single programming document; pursuant to Articles 92 and 93 of the Treaty, aid schemes must be approved by the Commission, except where they comply with the de minimis rule as described in the Community guidelines on State aid for small and medium-sized enterprises (15).
2. Community assistance in connection with existing aid schemes within the meaning of Article 172 (5) of the Act of Accession shall be granted, subject to possible adjustments or limitations that may be necessary to render them compatible with the Treaty.
3. Community assistance for new or altered aid schemes shall be suspended until they have been approved by the Commission.
Article 8
The Community assistance concerns expenditure on operations under the single programming document which, in the Member State concerned, are the subject of legally binding commitments and for which the requisite finance has been specifically allocated no later than 31 December 1999. The final date for taking account of expenditure on these measures is 31 December 2001.
Article 9
The single programming document shall be implemented in accordance with Community law, and in particular Articles 6, 30, 48, 52 and 59 of the Treaty and the Community Directives on the coordination of procedures for the award of contracts.
Article 10
This Decision is addressed to the Kingdom of Sweden.
Done at Brussels, 22 November 1995. | [
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COMMISSION REGULATION (EC) No 925/2005
of 17 June 2005
fixing the minimum selling price for skimmed-milk powder for the 20th individual invitation to tender issued under the standing invitation to tender referred to in Regulation (EC) No 214/2001
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products (1), and in particular Article 10(c) thereof,
Whereas:
(1)
Pursuant to Article 21 of Commission Regulation (EC) No 214/2001 of 12 January 2001 laying down detailed rules for the application of Council Regulation (EC) No 1255/1999 as regards intervention on the market in skimmed milk (2), intervention agencies have put up for sale by standing invitation to tender certain quantities of skimmed-milk powder held by them.
(2)
In the light of the tenders received in response to each individual invitation to tender a minimum selling price shall be fixed or a decision shall be taken to make no award, in accordance with Article 24a of Regulation (EC) No 214/2001.
(3)
In the light of the tenders received, a minimum selling price should be fixed.
(4)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
For the 20th individual invitation to tender pursuant to Regulation (EC) No 214/2001, in respect of which the time limit for the submission of tenders expired on 14 June 2005, the minimum selling price for skimmed milk is fixed at 198,24 EUR/100 kg.
Article 2
This Regulation shall enter into force on 18 June 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 June 2005. | [
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COMMISSION REGULATION (EC) No 445/2009
of 28 May 2009
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (1),
Having regard to Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules for Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (2), and in particular Article 138(1) thereof,
Whereas:
Regulation (EC) No 1580/2007 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in Annex XV, Part A thereto,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 138 of Regulation (EC) No 1580/2007 are fixed in the Annex hereto.
Article 2
This Regulation shall enter into force on 29 May 2009.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 May 2009. | [
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COMMISSION DECISION of 27 July 1993 amending Decision 83/471/EEC relating to the Community Inspection Committee on the application of the classification scale for carcases of adult bovine animals
(93/493/EEC)THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1208/91 of 28 April 1981 determining the Community scale for the classification of carcases of adult bovine animals (1), as last amended by Regulation (EEC) No 1026/91 (2), and in particular Article 5 (4) thereof,
Whereas, with a view to enabling the Commission to evaluate the results of inspections, provision should be made for the Member States to inform the Commission of the action taken regarding recommendations made by the Inspection Committee and appropriately to adjust Commission Decision 83/471/EEC of 7 September 1983 relating to the Community Inspection Committee on the application of the classification scale for carcases of adult bovine animals (3), as last amended by Decision 92/429/EEC (4);
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS DECISION:
Article 1
The following paragraph is hereby added to Article 4 of Decision 83/471/EEC:
'3. When the report referred to in paragraph 2 notes shortcomings in the various fields of activity which were the subject of verification, or makes recommendations with a view to improving operations, the Member States shall inform the Commission of all changes which are envisaged or have taken place not later than three months after the date on which the report was transmitted.'
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 27 July 1993. | [
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COMMISSION DECISION of 8 April 1998 amending the boundaries of the mountain areas in France within the meaning of Council Regulation (EC) No 950/97 (Only the French text is authentic) (98/280/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 950/97 of 20 May 1997 on improving the efficiency of agricultural structures (1), and in particular Article 21(3) thereof,
Whereas Council Directive 75/271/EEC (2), as last amended by Commission Decision 97/158/EC (3), concerning the Community list of less-favoured farming areas within the meaning of Regulation (EC) No 950/97 (France), lists the areas in France defined as mountain areas within the meaning of Article 23 of Regulation (EC) No 950/97 and the specific criteria which resulted in their being so defined;
Whereas the French Government notified the Commission, in accordance with Article 21(3) of Regulation (EC) No 950/97, of new areas likely to be included on the Community list of mountain areas and provided information on their characteristics; whereas, furthermore, the special aid scheme existing in the mountain areas will be extended to the new areas;
Whereas, as the above notification indicates, some areas meet criteria and indices in Council Directive 76/401/EEC (4) used to identify the areas covered by Article 23 of Regulation (EC) No 950/97; whereas the areas in question must therefore be included in the Community list of mountain areas within the meaning of Article 23 of Regulation (EC) No 950/97;
Whereas these amendments do not increase the utilised agricultural area of the less-favoured areas in France by more than 1,5 % because the areas are already classed as less-favoured pursuant to Article 24 of Regulation (EC) No 950/97;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Committee on Agricultural Structures and Rural Development,
HAS ADOPTED THIS DECISION:
Article 1
The Community list of mountain areas in France in the Annex to Directive 75/271/EEC is supplemented by the list in the Annex to this Decision.
Article 2
This Decision is addressed to the French Republic.
Done at Brussels, 8 April 1998. | [
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Commission Regulation (EC) No 1161/2002
of 28 June 2002
fixing the maximum aid for concentrated butter for the 272nd special invitation to tender opened under the standing invitation to tender provided for in Regulation (EEC) No 429/90
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products(1), as last amended by Commission Regulation (EC) No 509/2002(2), and in particular Article 10 thereof,
Whereas:
(1) In accordance with Commission Regulation (EEC) No 429/90 of 20 February 1990 on the granting by invitation to tender of an aid for concentrated butter intended for direct consumption in the Community(3), as last amended by Regulation (EC) No 124/1999(4), the intervention agencies are opening a standing invitation to tender for the granting of aid for concentrated butter; Article 6 of that Regulation provides that in the light of the tenders received in response to each special invitation to tender, a maximum amount of aid is to be fixed for concentrated butter with a minimum fat content of 96 % or a decision is to be taken to make no award; the end-use security must be fixed accordingly.
(2) In the light of the tenders received, the maximum aid should be fixed at the level specified below and the end-use security determined accordingly.
(3) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
For the 272nd special invitation to tender under the standing invitation to tender opened by Regulation (EEC) No 429/90, the maximum aid and the amount of the end-use security shall be as follows:
TABLE
Article 2
This Regulation shall enter into force on 29 June 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 June 2002. | [
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COMMISSION DECISION
of 19 March 2009
excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and under the European Agricultural Guarantee Fund (EAGF)
(notified under document number C(2009) 1945)
(Only the Danish, Dutch, English, French, Greek, Italian, Slovenian and Spanish texts are authentic)
(2009/253/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1258/1999 of 17 May 1999 on the financing of the common agricultural policy (1), and in particular Article 7(4) thereof,
Having regard to Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (2), and in particular Article 31 thereof,
Having consulted the Committee on the Agricultural Funds,
Whereas:
(1)
Under Article 7(4) of Regulation (EC) No 1258/1999, and Article 31 of Regulation (EC) No 1290/2005, the Commission is to carry out the necessary verifications, communicate to the Member States the results of these verifications, take note of the comments of the Member States, initiate a bilateral discussion so that an agreement may be reached with the Member States in question, and formally communicate its conclusions to them.
(2)
The Member States have had an opportunity to request the launch of a conciliation procedure. That opportunity has been used in some cases and the report issued on the outcome has been examined by the Commission.
(3)
Under Regulation (EC) No 1258/1999 and Regulation (EC) No 1290/2005, only agricultural expenditure which has been incurred in a way that has not infringed Community rules may be financed.
(4)
In the light of the verifications carried out, the outcome of the bilateral discussions and the conciliation procedures, part of the expenditure declared by the Member States does not fulfil this requirement and cannot, therefore, be financed under the EAGGF Guarantee Section and the European Agricultural Guarantee Fund, hereinafter referred to as EAGF.
(5)
The amounts that are not recognised as being chargeable to the EAGGF Guarantee Section and the EAGF should be indicated. Those amounts do not relate to expenditure incurred more than twenty-four months before the Commission’s written notification of the results of the verifications to the Member States.
(6)
As regards the cases covered by this Decision, the assessment of the amounts to be excluded on grounds of non-compliance with Community rules was notified by the Commission to the Member States in a summary report on the subject.
(7)
This Decision is without prejudice to any financial conclusions that the Commission may draw from the judgments of the Court of Justice in cases pending on 6 January 2009 and relating to its content,
HAS ADOPTED THIS DECISION:
Article 1
The expenditure itemised in the Annex hereto that has been incurred by the Member States’ accredited paying agencies and declared under the EAGGF Guarantee Section or under the EAGF shall be excluded from Community financing because it does not comply with Community rules.
Article 2
This Decision is addressed to the Kingdom of Belgium, Kingdom of Denmark, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Slovenia and the United Kingdom of Great Britain and Northern Ireland.
Done at Brussels, 19 March 2009. | [
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COMMISSION DECISION of 19 July 1984 relating to a proceeding under Article 85 of the EEC Treaty (IV/30.863 - BPCL/ICI) (Only the English text is authentic) (84/387/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles 85 and 86 of the Treaty (1), as last amended by the Act of Accession of Greece, and in particular Articles 4, 6 and 8 thereof,
Having regard to the application and notification submitted pursuant to Articles 2 and 4 of Regulation No 17 on 28 January 1983 by Imperial Chemical Industries plc, London, United Kingdom (hereinafter "ICI"), and on 8 February 1983 by BP Chemicals Limited, London, United Kingdom (hereinafter "BPCL"), concerning a set of agreements which were made effective as of 1 August 1982,
Having regard to the summary of the notification published (2) pursuant to Article 19 (3) of Regulation No 17,
After consultation within the Advisory Committee on Restrictive Practices and Dominant Positions,
Whereas:
I. THE FACTS
A. Subject of the Decision
(1) This Decision concerns the agreements between BPCL and ICI for the mutual sale of certain production units, technical know-how and goodwill for polyvinyl chloride (hereinafter "PVC") and low-density polyethylene (hereinafter "LDPE"). It also concerns the decision of BPCL to close down its PVC and chlorine wedge production units not involved in the agreements, and the decision of ICI to close down certain of its LDPE and ethylene production units not involved in the agreements. Finally, it concerns the agreements to change the capacity rights in a jointly owned ethylene cracker and of supply agreements between BPCL and ICI for polyethylene and ethylene.
B. The undertakings
(2) BPCL, a member of the BP group, is a UK company with worldwide interests in several industrial areas. BP activities are concentrated mainly in oil and gas exploration and (1) OJ No 13, 21.2.1962, p. 204/62. (2) OJ No C 20, 27.1.1984, p. 9. production, and petroleum products, but through BPCL it also has interests in chemicals (including PVC and LDPE), which in 1980 were 7 % of BP's turnover of £ 20 656 million. Its chemical interests are concentrated in the United Kingdom and the EEC, having had PVC plants in the United Kingdom only, but having LDPE plants located in the United Kingdom and in other Member States. BPCL also has a joint venture (Erdölchemie) with Bayer for the production of LDPE.
(3) ICI is a UK company with worldwide interests in several industrial areas. Its activities are concentrated primarily in chemicals (87 % of turnover of £ 7 358 million) of which it produces a wide range. Of the turnover in chemicals, 58 % is in western Europe (35 % in the United Kingdom and 23 % in the rest of western Europe). Petro-chemicals and plastics were 26 % of group turnover. ICI has PVC and LDPE plants in both the United Kingdom and the remainder of the EEC.
C. The products
(4) Both PVC and LDPE are petro-chemical plastics, based on the transformation of derivatives of crude oil like naphtha into ethylene. (It should be noted that ethane - a gas often previously flared during oil production - can also be used as a feedstock to replace naphtha). In addition to ethylene, PVC uses vinylchloride monomer which is based on chlorine (brine).
(5) 75 % of LDPE is used for packaging (plastic films and bags, etc.) and 50 % of PVC is used in building and construction materials (pipes, tubings, cables, wires, etc.). The remaining uses cover a very wide range of plastics products manufactured by plastics transformers. Some of the plastics transformers are subsidiaries of the large petro-chemical and plastics producers.
D. The agreements
The main provisions of the agreements which took effect on 1 August 1982 are as follows:
(6) ICI transferred to BPCL its No 5 LDPE plant to Wilton, United Kingdom, together with all necessary associated plant, equipment and facilities and granted BPCL a licence to occupy the LDPE site and to have access necessary in connection with the operation of the LDPE plant. In addition, ICI transferred all the loose plant and equipment associated with the LDPE plant and granted on a non-exclusive basis all necessary rights under ICI's patent rights and technical information to enable BPCL to exploit fully the plant. ICI also transferred the goodwill of all its UK LDPE business.
(7) ICI, for a consideration, agreed to act as the sole and exclusive agent of BPCL for the operational life of No 5 LDPE plant for its operation, care and maintenance. BPCL agrees to operate the plant for three years. For the first three years after the agreement, ICI is to have the right to veto any sale of the plant by BPCL. This veto will not be unreasonably used. Any eventual shutdown or closure costs of the plant will be the responsibility of BPCL.
(8) For a period of five years, ICI will purchase at fair market price from BPCL a large part (1) of its requirements of polyethylene suitable for its "Visqueen" UK polyethylene sack and bag business.
(9) BPCL transferred to ICI its No 3 PVC resins plant at Barry, United Kingdom, together with all the necessary associated plant, equipment and facilities and granted ICI sub-leases for the PVC site and granted rights of access necessary in connection with the operation of the PVC plant. In addition, BPCL transferred all the loose plant and equipment associated with the PVC plant and granted on a non-exclusive basis all necessary rights under BPCL's patent rights, and technical information to enable ICI to exploit fully the plant. BPCL also transferred the goodwill of all its PVC business.
(10) ICI is to operate the PVC plant and agrees that it will be operated for at least three years. Any eventual shutdown or closure costs of the plant will be the responsibility of ICI. BPCL, for a consideration, agreed to provide, for not less than three years, such services as ICI may reasonably require for the proper safe and efficient operation of the No 3 PVC resins plant.
(11) The ownership and capacity rights in the No 6 ethylene plant (and its associated gasoline treatment plant) and the No 3 butadine plant, all (1) The quantities are specified in the agreements notified. For reasons of business secrecy, these quantities have not been published, pursuant to the provisions of Article 21 (2) of Regulation No 17. at Wilton, have changed from ICI 50 % : BPCL 50 % to ICI 80 % : BPCL 20 %.
(12) For a period of five years, BPCL is to purchase from ICI at Wilton a fixed tonnage per annum (1) of ethylene at fair market prices.
E. Economic effect of the agreements
(13) The western European producers of bulk petro-chemicals are currently facing considerable over-capacity. In addition, the manufacturers will face and are facing increasing competition from producers outside western Europe who have access to cheap feedstocks. Until recently, this resulted in most manufacturers making a loss on petro-chemicals. These losses and over-capacity constitute an incentive for producers to reduce capacity or in certain extreme cases even completely withdraw from certain lines where they have a comparative disadvantage. Reducing capacity allows a producer to run the remaining plants at a higher capacity utilization, thereby reducing costs. In general, but particularly for ethylene, it should be noted that to run petro-chemical plants below capacity or to start up/close down production temporarily, increases unit production costs. In order to stem their particular losses in petro-chemicals, both BPCL and ICI had been developing long-term strategies.
(14) BPCL's strategy
In its long-term strategy BPCL saw itself as having a comparative disadvantage for the production of both PVC and the chlorine wedge inputs, and a comparative advantage for polyethylene (including LDPE). (14.1) BPCL saw the possibility of its eventual total withdrawal from PVC and in fact had already closed one PVC plant before the agreements with ICI. However, total immediate withdrawal from the loss-making PVC sector would only have lead to increased losses. Such a withdrawal would have reduced internal demand for ethylene and so increased unit production costs for the remaining production. This increase in costs of ethylene would have outweighed savings stemming from any PVC closures.
(14.2) BPCL was looking to acquire additional modern LDPE capacity such that it could convert one of its older LDPE plants to linear LDPE production. Such a strategy meant it could offer a full range of polyethylenes to its customers without disruption of supplies.
(14.3) The agreements with ICI allowed BPCL to realize immediately this long-term strategy. The acquisition of a modern LDPE plant and the goodwill for all of ICI's UK LDPE business allowed BPCL to increase plant loading in modern plant and convert an older LDPE to linear LDPE. It also increased internal demand for ethylene. After the sale of its most-modern PVC plant to ICI along with its reduced share of the jointly owned ethylene cracker, BPCL closed down all its remaining PVC plants and chlorine wedge plants thus totally withdrawing from the production of PVC (these closures were not part of the agreements themselves). By disposing of ethylene capacity and increasing demand for ethylene through the acquisition of LDPE capacity, BPCL was able to close down its remaining loss-making PVC plants and chlorine wedge plants without incurring the cost penalties described above.
(14.4) The agreements with ICI were therefore consistent with BPCL's long-term strategy. However, in the absence of any such agreements BPCL would have continued to produce PVC at least in the short and medium term even if only with reduced capacity. Only the overall deal with ICI which gave BPCL simultaneously extra LDPE capacity and reduced its ethylene capacity allowed it to withdraw from PVC production. In fact, the sale of the PVC and chlorine plants to Norsk Hydro which was originally contemplated was dropped when it was realized that this would not solve the problems of its ethylene balance, for which a solution could only be found by a deal involving ICI and the three products in question (PVC, LDPE and ethylene).
(15) ICI's strategy
In contrast to BPCL, ICI in its long-term strategy saw itself as having a comparative advantage for the production of PVC and a comparative disadvantage for LDPE. (15.1) ICI wanted to build up its PVC capacity. In fact ICI had recently acquired or constructed before (1) The quantities are specified in the agreements notified. For reasons of business secrecy, these quantities have not been published, pursuant to the provisions of Article 21 (2) of Regulation No 17. the agreements with BPCL other PVC capacity. This would allow it both to increase loading of its chlorine wedge plants and of its ethylene plants, and so exploit its advanced technologies.
(15.2) ICI was looking for ways to run down its LDPE capacity with possible eventual withdrawal if closures which would allow increased plant loading did not stem the losses. In fact ICI had already before the agreements with BPCL closed down some older LDPE capacity. However, disposal of LDPE capacity by reducing internal demand would have aggravated its ethylene balance.
(15.3) The agreements with BPCL allowed ICI to realize immediately part of this long-term strategy. The acquisition of a modern PVC plant and the goodwill for all BPCL's PVC business allowed ICI to increase plant loading in PVC and chlorine wedge plants. It also increased demand for ethylene. ICI's acquisition of increased capacity in the modern jointly owned ethylene plant meant that it could now satisfy its total internal demand for ethylene from this plant at a higher capacity loading and was thus able to close down its other older and now surplus to requirements ethylene plant. Similarly, the sale of its most-modern UK LDPE plant and the above-described solution to the problem of its ethylene balance allowed it to dose all its remaining UK LDPE plants. ICI still had several LDPE plants on the Continent, one of which was closed subsequent to the agreements. None of the abovementioned closures were part of the agreements themselves.
(15.4) The agreements with BPCL were therefore consistent with ICI's long-term strategy. However, in the absence of any such agreements ICI would have continued to produce LDPE in the United Kingdom at least in the short and medium term even if only with reduced capacity. Only the overall deal with BPCL involving the capacities of the three products concerned (LDPE, PVC and ethylene) allowed ICI to make its partial withdrawal from LDPE production and close down an ethylene plant.
(16) The result of the agreements and subsequent plant closures (which did not form part of the agreements themselves) was a specialization of production in the United Kingdom. ICI abandoned the production of LDPE in the United Kingdom, specializing instead in PVC, and BPCL totally abandoned the production of PVC, specializing instead in LDPE.
(17) Both ICI and BPCL claim that the plant closures carried out subsequent to the agreements were not a result of the agreements. Both maintain that these closures were an inevitable consequence of the industry-wide excess capacity and the long-term strategies which were worked out independently to deal with the problem. In the absence of any agreements, these plants, together with the plants which were sold, would have had to be closed sooner or later.
F. The position of the parties on the market
(18) Ethylene (18.1) It is difficult to define a market for ethylene because the bulk of production is consumed internally within the producing company. This is due largely to the difficulties and cost of transport, except by pipeline. It is for the products derived from ethylene, which are traded, that a market can be defined. Notwithstanding this reserve, the following capacity figures are given. In 1981, before the agreements and associated closures, BPCL had 47 % of UK capacity and ICI 40 %. After the deal BPCL has 47 % and ICI 35 %. Esso and Shell are the other UK producers, whose relative importance will be increased once their joint venture at Mossmorron comes into production (foreseen 1985/86).
(18.2) At the level of the EEC, BPCL, as a result of the agreements and associated closures, has 11 % of capacity and ICI 4 %. Even after the agreements, there remain in addition to BPCL and ICI 10 other important producers (i.e. having more than 5 % of EEC capacity) two of which also have production facilities in the United Kingdom. The closure of the ethylene production plant accounts for slightly less than 4 % of EEC ethylene capacity and 23 % of current UK capacity.
(19) LDPE (19.1) Unlike ethylene, LDPE is traded readily between companies (only 11,5 % of sales are for internal use) and imports/exports constitute an important part of sales/production in each Member State - in the United Kingdom 37 % of sales are imports.
(19.2) At the level of the EEC, as a result of the agreements and associated closures, BPCL's share of capacity increases from 7,9 to 10,2 % and ICI's declines from 8,6 to 4 %. Nevertheless, there remain 12 producers with four having larger capacity than BPCL. In 1981 there were 16 producers. In the decrease to 12 producers, capacity has been cut by 14 %.
(19.3) At the level of the United Kingdom, only two producers remain, BPCL and Shell, with 62,5 and 37,5 % respectively of the new, reduced capacity.
(19.4) The reduction in capacity made by ICI in the United Kingdom represents 23 % of UK capacity and 2,5 % of EEC capacity. In addition, ICI's cut of its EEC capacity represents 1,7 % of total EEC capacity.
(20) PVC (20.1) As with LDPE, PVC is traded readily between companies (only 20 % of sales are for internal use) and imports/exports constitute an important part of sales/production in each Member State - in the United Kingdom 30 % of sales are imports.
(20.2) At the level of the EEC, as a result of the agreements and associated closures, ICI's share of capacity increases from 9,8 to 11,1 % and BPCL's share disappears from 3,8 % in 1981 (this includes the closures which were started in 1980). Nevertheless, there remain 13 producers with four having larger capacity than ICI (in 1981, there were 21 producers ; in the decrease to 13 producers, capacity has been cut by 3 %).
(20.3) At the level of the United Kingdom, only two producers remain, ICI and Norsk Hydro, with 80 and 20 % respectively of the new, reduced capacity. Previous to the deal, in 1981, ICI had 45 % and BPCL 31 %.
(20.4) The reduction in capacity made by BPCL from 1981 represents 3,3 % of EEC capacity and, excluding the plant mothballed by Norsk Hydro from UK capacity, the reductions represent 23 % of UK capacity.
G. Observations of third parties
(21) No comments were received from third parties in response to the Commission's notice pursuant to Article 19 (3) of Regulation No 17.
II. LEGAL ASSESSMENT
A. Article 85 (1)
(22) The agreements in question fall within the scope of the prohibition of Article 85 (1), since they constitute agreements between undertakings and concerted practices which may affect trade between Member States and which have as their object and effect the restriction of competition. The negative clearance requested by ICI and BPCL may not therefore be granted. The agreements may, however, be exempted under Article 85 (3), since its requirements are satisfied.
(23) BPCL and ICI constitute undertakings within the meaning of Article 85 (1).
(24) The agreements in question, in particular the sale both of the most-modern plants and of all of the parties' goodwill on the respective markets with the implied obligation not to compete and the subsequent closures of the plants not specifically included in the same agreements, constitute agreements and concerted practices within the meaning of Article 85 (1).
(25) These agreements and concerted practices have as their object and effect the restriction of competition within the common market.
The anti-competitive effects and object of the agreements and concerted practices
(26) The agreements in question plus the associated closure of PVC, LDPE and ethylene plants must be seen as a whole, and their economic effect examined. The final result is equivalent to both a production specialization agreement and agreement to limit capacity on the UK market in that BPCL withdraws from the production and distribution of PVC, and ICI from LDPE. Competition is as a consequence restricted appreciably for both products since each party was an important and active competitor before the agreements. (26.1) BPCL's sale, both of its most-modern PVC plant and of the goodwill of all its PVC buisness (which prohibits the seller from canvassing his former customers for a reasonable period), effectively preluded BPCL from competing with the purchaser - ICI - thus implicitly forcing BPCL to close all its remaining PVC plants (and associated chlorine wedge plants) not specifically involved in the deal. Once the most-modern plant had been sold, together with all the goodwill, the subsequent closures were immediately inevitable. BPCL could not in practice have sold the output of the older PVC plants which it retained to purchasers who previously were not customers because production costs would have been higher on the remaining older and less-efficient plants, because BPCL's previous penetration of the UK market (where its sales had been concentrated) and the dual or multiple sourcing of most purchasers effectively meant BPCL could not canvass any customers in the United Kingdom and because, in view of the general industry-wide over-capacity, penetration of a new market from such a weak production base was impossible. However, and most importantly, it was the overall agreements with ICI allowing BPCL to solve the problem of its ethylene balance which permitted the latter to close its PVC plant and specialize in the production of LDPE. Without the agreement with ICI involving all these products (ethylene, PVC and LDPE) BPCL's strategy would have been to continue PVC production even if only at a reduced level of capacity. The agreements thus brought about an immediate specialization in the production of LDPE by BPCL by stopping production of PVC which at least in the short term would not otherwise have taken place.
(26.2) In the same way, as a result of its sale both of its most-modern LDPE plant and of the goodwill from all its UK LDPE business, ICI is effectively precluded from competing with the purchaser and had no practical alternative but to close immediately its remaining UK LDPE plants. ICI could not have sold the output of the older LDPE plants it retained on non-UK markets because ICI's non-UK LDPE plants were not themselves running at full capacity, because there was industry-wide surplus capacity and because the LDPE plants in the United Kingdom were the older, less-efficient plants. However, in the absence of any agreements with BPCL, ICI would probably have continued, in line with its long-term strategy, to run down gradually its LDPE business. The agreements thus brought about an immediate partial specialization by ICI in stopping the production of LDPE in the United Kingdom which would not otherwise have taken place, at least in the short term.
(26.3) Because of the sale of the goodwill of its UK LDPE business, ICI's LDPE plants on the Continent are implicitly precluded from competing on the UK market. By the sale of all their UK LDPE goodwill, ICI is prohibited from canvassing its former UK LDPE customers for a reasonable period of time. Given the nature of the UK LDPE market and ICI's former market penetration, this effectively amounts to a prohibition of competition.
(26.4) It should be noted that the sale of all the parties' goodwill on the respective markets, which prohibits the seller from canvassing his former customers for a reasonable period and which in the circumstances of the present case amounts implicitly to an obligation not to compete, is not simply ancillary to the transfer of the assets, because of the fact that goodwill is being transferred without the plant to which it belongs and of the reciprocal nature of these transfers.
(27) In addition, both parties still constitute potential competitors, even though not for the moment in the areas in question, because of the agreements and concerted practices they are precluded from being active competitors. (27.1) ICI has not completely abandoned business in the field of LDPE since it still possesses plants in the EEC outside the United Kingdom.
(27.2) Both parties are major petro-chemical companies with large financial resources who, in view of the know-how available to them, could relatively easily re-enter the production of PVC or LDPE. In fact, one producer often manufactures both PVC and LDPE (as the parties did before the agreements) since both products are derived from ethylene. Ethylene producers thus have the possibility in general to enter both markets. Even after the agreements both parties will remain ethylene producers.
(27.3) It is not clear that the abandonment of the business in the United Kingdom is irreversible. ICI will continue to run on a day-to-day basis the LDPE plant acquired by BPCL, and BPCL will continue to supply certain services essential for the running of the PVC plant acquired by ICI. Both plants which were sold are still in effect integrated into large sites owned and managed by the sellers. Similarly, there are no problems of reversing the ownership rights as far as the agreement on ethylene is concerned. Nevertheless, even though it may be technically feasible to reverse the decision, it can be assumed that the parties do not envisage such a reversal for the moment.
(28) Further anti-competitive effects of the agreements stem from ICI's right for three years to veto any sale of the plant sold to BPCL since this restricts BPCL's rights to dispose of the plant as it thinks fit. In addition both BPCL and ICI agree to operate their newly acquired LDPE and PVC plants for three years, thus preventing either from closing these plants during this period. These conditions constitute restrictions on competition, since they limit the freedom of the purchaser to operate his productive capacity as he thinks fit.
(29) Finally, the agreement whereby ICI will obtain for five years a large part of its polyethylene for its UK "Visqueen" business from BPCL at fair market prices constitutes in effect a quasi-exclusive supply agreement. This quasi-exclusive supply agreement precludes other producers from supplying a large part of ICI's requirement and thus constitutes a restriction of competition.
(30) The parties maintain as a reason for excluding the agreement from the scope of Article 85 (1) that the decisions to withdraw from the UK market by ICI and BPCL in LDPE and PVC respectively were inevitable since these decisions were in line with their respective long-term strategies. It is true that competition on the respective markets seemed to be forcing ICI and BPCL to run down their activities but this run-down would not have amounted in the short and medium term to a total withdrawal. In the absence of the agreements, each party would have continued operation even if only on a reduced scale in the areas which it was obliged to abandon. The sale both of the most-modern plant and of the goodwill were the instruments that determined the actual closures and their timing. Therefore it may be concluded that the agreements entailed as an immediate and inevitable consequence a specialization of production and a closure of capacity, and as such fall within the scope of Article 85 (1).
(31) The parties have further argued that the agreements constitute a partial concentration/merger and as such do not fall within the scope of Article 85 (1). Whilst the sale of physical assets may involve elements of partial concentration (see Commission Decision 75/95/EEC - SHV/Chevron (1)), the agreements, and particularly the sale of both the most-modern plant and of all of the parties' goodwill and its reciprocal nature on the respective markets with the implied obligation not to compete and the subsequent closures, go far beyond a simple partial concentration and cannot be considered as such. The foregoing is without prejudice to the question whether such a concentration would justify the non-application of Article 85 (1).
The effect on trade between Member States
(32) Trade between Member States will also be appreciably affected since both PVC and LDPE are traded readily between Member States and both ICI and BPCL were active importers and exporters of both products. Furthermore, ICI's remaining continental LDPE plants are precluded from competing on the UK market. Finally, competitors of ICI and BPCL for both PVC and LDPE are situated in other Member States as well as in the United Kingdom, and these competitors (both those established outside the United Kingdom and trying to sell within that Member State and those UK producers selling on the (1) OJ No L 38, 12.2.1975, p. 14. Continent in competition with the parties) are likely to be confronted in the future with different trading conditions.
B. Article 85 (3)
(33) The agreements and associated closures discussed above satisfy the conditions for an exemption under Article 85 (3) since they contribute to improving the production or distribution of goods and to promoting technical and economic progress, while allowing consumers a fair share of the resulting benefits and they do not: - impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives, or
- afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question.
Weighing of the advantages and disadvantages
(34) In view of the industry-wide structural over-capacity for the products in question and the fact that the agreements and associated plant closures reduced this surplus capacity and improved plant loading without eliminating effective competition, the advantages resulting from these agreements and associated plant closures outweigh harmful effects they may entail. The question whether the various conditions for the application of an exemption under Article 85 (3) are fulfilled is examined in detail below.
Improvement of production and distribution, promotion of technical and economic progress
(35) The implicit and reciprocal obligation not to compete enabled ICI and BPCL to close their respective LDPE, PVC, chlorine wedge and ethylene plants, thereby both reducing immediately the industry-wide surplus capacity existing in the EEC and also leading to more-efficient production.
If ICI and BPCL by renouncing competition with each other, and by specializing, thereby manage to keep each other's customers in PVC and LDPE respectively, it will allow them to increase loading capacity both in the production of the product in which they are specializing and in ethylene. This increased loading will reduce unit costs and lead to more-efficient production. In addition, the closures stemmed a loss-making activity for both ICI and BPCL, thus releasing resources for investment which will help promote technical progress. Finally, ICI and BPCL acquired each other's most-modern and efficient plant along with the technology in PVC and LDPE, respectively. This allowed ICI and BPCL to concentrate their production of PVC and LDPE, respectively, in the most-modern plants which, along with the increased loading, should lead to more-efficient production. Given that the over-capacity in the industry is of a structural nature, market forces would have been too slow at bringing about the necessary radical changes. These agreements by their immediate closure of plants, accelerate the tendency to re-establish the equilibrium in supply and demand.
Benefit to consumers
(36) Consumers will benefit from the agreements since supplies will be on a more-secure basis. By the planned transfer of the respective businesses and know-how consumers can rely on continuity of equivalent quality supplies. However, if plants had been subjects to the threat of unilateral closure by the producers, which was a possibility in view of the losses being made, individual customers would not have had this certainty. There would have been an inevitable disruption before supplies of equivalent continuity and quality could have been found.
Moreover, by permitting each party to (partially) withdraw from a loss-making product line, the agreement will permit consumers to benefit in the long run since this will allow the specializing party to be able to liberate resources to finance long-term investment and research and development rather to cover operating costs. (36.1) Since in this case the potential for effective competition is maintained (see below) and this is a necessary prerequisite, consumers will similarly obtain benefits which will stem from the increased loading of plant and which will bring about reduced unit costs. This increased plant-loading is particularly important as in the present case where there are high fixed costs such that under-utilization of capacity leads to large increases in unit costs. Furthermore, the maintenance of effective competition is particularly important in industries such as the present case where barriers to entry to firms who have neither produced the products in question nor produce ethylene are high. However, despite the capacity cutbacks, consumers can rely on what is a potentially competitive and economically healthy structure of supply in the Community without having been deprived of their freedom of choice or the benefit of continued competition between the remaining participating firms.
(36.2) The structural over-capacity that has been found in the products in question and the technological constraints on production (mentioned above in point 13) resulted in a market price that was not sufficient to ensure profitability. These short-term losses could not have been sustained in the medium or long term. The price rises for the products in question that have been seen subsequent to the agreements and plant closures were, despite the decrease in unit cost stemming from increased plant loadings, both necessary and inevitable. It must be stressed that these price rises, seen since the agreements and plant closures, are not a result of the agreements and plant closures. They are rather the result of market forces which BPCL and ICI have merely followed. These rises have allowed all producers to re-establish normal levels of profitability from the previous loss-making situation. However, the maintenance of effective competition will ensure that these rises are no more than necessary to establish market prices that are competitive in the medium and long term, and which at the same time will guarantee a healthy industrial structure in the medium and long term. As long as effective competition is maintained, consumers are better served over the medium and long term by a stronger industry, able both to run at efficient capacity loadings and to earn sufficient profits to finance future investments and research and development, even if this implies some short-term price rises.
Indispensability
(37) The restrictions in the agreements for the reciprocal sale of LDPE and PVC plants, and the restrictions implied both by the sale of the most-modern plant and by the sale of the goodwill for all the plants (which brought about a specialization of production and the closure of the remaining plants) were necessary to achieve the beneficial objectives.
Such arrangements allowed the purchaser to have the best chance of improving loading capacities in the most-modern plant. In effect, the specialization by each party in the UK market is a better means of reducing capacity and improving loading than competition itself, since its beneficial effects are felt immediately.
(38) ICI's and BPCL's undertakings to operate for three years their purchased plants are equally necessary to achieve the beneficial objectives. The plants in question are fully integrated into larger sites owned and operated by the seller, and in order to be able to plan with some certainty both the supply of services and other inputs, and its personnel policy, the seller needs, for a limited time after the sale, to know whether the plant will be kept operational. In addition, ICI's right to veto during those years any sale of the plant acquired by BPCL is also indispensable. ICI is to act as the sole and exclusive agent of BPCL in the operation of the LDPE plant acquired by BPCL. In order for ICI to continue effectively the operation of the LDPE plant, it needs to develop a working relationship with the undertaking for whom it is operating this plant. To prevent too many disruptions and allow a stable relationship to develop, for a short period ICI needs a veto over any sale. The fact that this veto will not be unreasonably used means that ICI must have objective reasons before this veto can be applied.
(39) Finally, the agreement whereby ICI will obtain for five years a large part of its polyethylene for its UK "Visqueen" business from BPCL is an integral part of the overall arrangement and necessary to achieve its objectives. Before the agreements, ICI produced from its own LDPE plants its requirements of polyethylene. As a result of the agreements and closures ICI has no remaining UK capacity and, as a consequence, needs suddenly to be able to find a reliable supplier able to ensure the delivery of the appropriate quantities and grades of polyethylene. By acquiring ICI's plant, BPCL is in the best position to ensure continuation of such supplies. The limiting of this agreement to five years is sufficient to allow ICI to make a transition from supplying its own polyethylene to being a purchaser. The requirement that only a large part (and not total exclusivity) must be purchased is sufficient to ensure that ICI obtains reliable and adequate supplies from BPCL whilst at the same time allowing it to start purchases from other producers, thus developing alternative sources of supply for the medium and long term.
The agreements in question therefore do not go beyond that which is necessary for the achievement of the beneficial objectives. The parties could not have used less-restrictive means to realize the aforesaid objectives of their arrangement. As such, any restrictions may be considered indispensable.
The elimination of competition
(40) The agreements and associated closures do not afford the parties the possibility of eliminating competition in respect of a substantial part of the relevant market for ethylene, PVC and LDPE.
Ethylene
(40.1) Given the difficulties and costs of transport for ethylene plus the fact that the bulk of it is used for internal use by the producers, the volume of the relevant market is rather small. However, given the number of producers on the market, the potential for effective competition is not eliminated.
PVC and LDPE
(40.2) As a result of the agreements and associated closures, there has been a marked increase in concentration amongst UK producers of PVC and LDPE. In each case only two UK producers remain, with ICI and BPCL for PVC and LDPE, respectively, being by far the most important producers in the United Kingdom. An active and important competitor has been eliminated for each product. However, given the relatively low costs of transportation of these products, it would be exaggerated to define the United Kingdom as the relevant market for both PVC and LDPE. This conclusion is reinforced by the fact that, for both products, imports form an important part of sales. Furthermore, these imports come principally from important European producers of PVC and LDPE other than BPCL and ICI. In the past only a very small percentage of imports was sold to BPCL and ICI. The vast bulk went either directly to the customers (i.e. plastics processors) for PVC and LDPE or to UK marketing subsidiaries of the non-UK based LDPE and PVC producers. Given the distribution network for PVC and LDPE and the active involvement of several important non-UK based producers in the UK market, then the EEC (or wider) could be considered as the relevant market. Thus, on the relevant market for both products, even though there has been some concentration recently in addition to the agreements under discussion, a sufficient number of important producers are still actively involved to ensure that effective competition could potentially be maintained. Furthermore, since BPCL and ICI are not the most-important EEC producers, the agreements and associated closures do not allow them the possibility of eliminating competition in respect of a substantial part of the products in question.
Duration of the exemption and obligations
(41) Pursuant to Article 8 (1) of Regulation No 17, conditions and obligations may be attached to a decision granting exemption under Article 85 (3). (41.1) In order that the vendor of the plant and goodwill respects his obligation to transfer the full value of the assets which he sells he is prohibited from canvassing his former customers. In the circumstances of this case the seller is implicitly precluded from competing with the purchaser on the markets to which the goodwill relates (see point 26.4 above). However, this restriction on competition should be limited to what is essential for the preservation of the value of the transferred asset and should not exceed a period necessary for this purpose.
(41.2) In this case the purchaser, even though already operating similar plants to those purchased, had difficulties lasting well over 12 months in fully assimilating the transferred technology. In ICI's case the difficulty was to achieve full operational capacity at optimum cost-competitiveness and in BPCL's case to comprehend the new technology and produce grades previously produced on the closed plants. Thus, although the value of the goodwill was considered not to be a valuable asset relative to the value of the physical plant (there are no long-term supply contracts, customers use multiple sourcing for supplies and middlemen play an active role in the market), because of the technical difficulties described above a period of around four years is warranted when restrictions on competition can be justified.
(41.3) It follows that the LDPE plants which ICI still owns outside the United Kingdom (in the EEC) should not be restricted from competing on the UK market for LDPE beyond the period necessary to transfer the value of the goodwill and assimilate the technology. In order to assist the Commission in ensuring that competition is not being unduly restricted, ICI should transmit a report every three years to the Commission. This report should give the sales of LDPE by ICI or any associated company or subsidiary in the United Kingdom and a breakdown of sales by status of purchaser (i.e. line of business of purchaser and whether it is a wholly or partially owned subsidiary of ICI). It should also give the total production for a similar period of ICI's European and other interests in LDPE. Each report must arrive not later than three months after the end of the period which it covers. The first report should cover the period 1 January 1987 to 31 December 1989.
(41.4) As far as BPCL is concerned, a similar report should be provided if BPCL or any associated company or subsidiary ever acquires any PVC production facilities in Europe or any other area from which imports into the United Kingdom could be viably made.
(41.5) The Commission however reserves the right to ask for any further information that it may consider necessary to assure itself that competition is not being unnecessarily restricted.
(41.6) So that the Commission can perform its supervisory duties pursuant to Article 8 (2) of Regulation No 17, the undertakings to whom this Decision is addressed must be under an obligation to notify to it any amendment or addition to the agreements.
(42) Pursuant to Article 8 (1) of Regulation No 17, a Commission decision in application of Article 85 (3) of the Treaty shall be issued for a specified period.
In order that both BPCL and ICI can exploit fully the specialization of production in the United Kingdom, which is the result of both the acquisition of plants and technology and of the plant closure, within the framework of their respective long-term strategies - strategies which are necessary for any integrated petro-chemical manufacturer - an exemption of 15 years from the date of the notification of the agreement, that is until 27 January 1998, is deemed sufficiently long. Furthermore the aspects of restructuring and capacity reduction involved are developments which must take place within this same long-term strategy framework,
HAS ADOPTED THIS DECISION:
Article 1
Pursuant to Article 85 (3), the provisions of Article 85 (1) of the EEC Treaty are hereby declared inapplicable for the period 28 January 1983 to 27 January 1998 to the agreements which became effective on 1 August 1982 between Imperial Chemical Industries plc (hereinafter ICI) and BP Chemicals Limited (hereinafter BPCL) concerning the sale of PVC and LDPE business, and the agreements and behaviour associated with and dependent on these aforesaid agreements implying both plant closures and specialization of production in the United Kingdom.
Article 2
The declaration of exemption contained in Article 1 shall be subject to the following obligations: 1. ICI shall transmit during the period of the exemption a report every three years to the Commission, arriving not later than three months after the end of the period which it covers. The first report shall cover the period 1 January 1987 to 31 December 1989 and shall contain the production by ICI (including any associated companies and any partly or wholly owned subsidiaries) of LDPE in Europe or in any other area from which imports into the United Kingdom could be viably made. It shall also contain sales of LDPE in the United Kingdom and a breakdown of these sales by status of the purchaser (that is, line of business of purchaser and whether it is a wholly or partly owned subsidiary of ICI).
2. If during the period of the exemption BPCL (including any associated companies and any partly or wholly owned subsidiaries) acquires any PVC production facilities in Europe or in any other area from which imports into the United Kingdom could be viably made, it shall inform the Commission without delay and transmit a report every three years to the Commission, arriving not later than three months after the end of the period which it covers. This report shall contain production by BPCL (including any associated companies and any partly or wholly owned subsidiaries) of PVC in Europe or in any other area from which imports into the United Kingdom could be viably made, sales of PVC in the United Kingdom and a breakdown of these sales by status of the purchaser (that is, line of business of purchaser and whether it is a wholly or partly owned subsidiary belonging to the BP group).
3. The undertakings to which this Decision is addressed shall inform the Commission forthwith of any amendments or additions to the agreements referred to in Article 1 or of any change in the scope, nature or extent of the cooperation between them in the fields covered by this Decision.
Article 3
This Decision is addressed to the following undertakings: - Imperial Chemical Industries plc
Imperial Chemical House Millbank UK-London SW1P 3JF
- BP Chemicals Limited
Belgrave House 76 Buckingham Palace Road UK-London SW1 0SU
Done at Brussels, 19 July 1984. | [
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COMMISSION DECISION
of 2 August 2004
on the State Aid implemented by France for France Télécom
(notified under document number C(2004) 3060)
(Only the French version is authentic)
(Text with EEA relevance)
(2006/621/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 88(2) thereof,
Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
Having called on interested parties to submit their comments pursuant to the provisions cited above (1) and having regard to those comments,
Whereas:
1. PROCEDURE
(1)
By letter dated 31 January 2003, the Commission informed France of its decision to open the formal investigation procedure provided for in Article 88(2) of the EC Treaty (‘the opening decision’) in respect of financial measures introduced by the French authorities for France Télécom (‘France Télécom’, ‘FT’ or ‘the Company’) and in respect of the business tax scheme applicable to that operator. A description of the facts which led to the procedure being opened is not included in this Decision (2).
(2)
The opening decision was notified to France on 31 January 2003. After a number of substantive errors had been corrected, a corrigendum was notified to France on 7 March 2003.
(3)
France communicated additional information to the Commission by letters dated 4 April 2003, 15 May 2003 and 29 January 2004.
(4)
The Commission's decision to open the procedure was published in the Official Journal of the European Union (3). The Commission invited interested third parties to submit their comments on the aid measures in question.
(5)
The Commission received the following comments on the subject from interested third parties:
-
21 March 2003: comments from Cable and Wireless plc and Cable and Wireless SA
-
11 April 2003: comments from Cegetel
-
10 April 2003: comments from AFORS Telecom
-
11 April 2003: comments from LDCOM
-
11 April 2003: comments from A (4)
-
10 April 2003: comments from Tiscali
-
11 April 2003: comments from WorldCom France (5)
-
11 April 2003: comments from B (6)
-
11 April 2003: comments from Bouygues ITS and Bouygues Telecom (7)
-
14 April 2003: comments from Telecom Italia
-
14 April 2003: comments from C (8)
-
29 April 2003: comments from B
-
30 April 2003: comments from LDCOM (9).
(6)
The Commission transmitted the comments to France on 16 May 2003, giving it the opportunity of commenting on them. It received France's comments by letters dated 30 June and 29 July 2003 (10).
(7)
On 30 May 2003, the Commission published an invitation to tender for a contract ‘for the provision of services to assist in assessing the compliance of the financial assistance granted to France Télécom with the principle of the private investor in a market economy and if necessary to analyse France Télécom's recovery plan’ (11). By letter dated 3 July 2003, the French authorities wrote to the Commission about the above-mentioned invitation to tender. The Commission replied by letter dated 24 September 2003. On 24 September 2003, the contract for the provision of services was awarded to the firm of consultants NERA (‘NERA’, or ‘the consultant’). The French authorities were informed of the expert's identity by fax dated 8 October 2003.
(8)
The Commission received other information and documents from the third parties listed below:
-
23 June 2003: letter from LDCOM
-
25 June 2003: letter from D (12)
-
27 October 2003: letter from MCI
-
16 October 2003: letter from ECTA
-
25 June 2003: letter from XXX
-
7 January 2004: letter from Bouygues Telecom
-
16 January 2004: letter from Bouygues Telecom (13)
-
19 March 2004: letter from France Télécom (14)
-
5 April 2004: letter from Tiscali
-
17 May 2004: letter from LDCOM
-
26 May 2004: letter from Bouygues Telecom (15)
-
22 June 2004: letter from France Télécom (16)
-
30 June 2004: fax from France Télécom
-
2 July 2004: fax from France Télécom.
(9)
The Commission requested additional explanations from the French authorities by the following letters:
-
11 September 2003 (answer given by the French authorities on 20 October 2003)
-
11 November 2003 (answer given by the French authorities on 4 December 2003)
-
12 January 2004 (answer given by the French authorities on 21 January 2004)
-
2 February 2004 (answer given by the French authorities on 16 February 2004)
-
1 June 2004 (answer given by the French authorities at the meeting on 16 June 2004).
(10)
The Commission forwarded to the French authorities on 3 May and 14 June 2004 the letters referred to in paragraph 8 and the NERA report of 28 April 2004 (‘the NERA report’). The report is in two separate parts: (i) a legal report by Professor Berlin; and (ii) an economic report.
(11)
The Commission heard representatives of third parties at various meetings during the course of the proceeding.
(12)
The Commission and the consultant met with the French authorities and France Télécom on 22 January and 16 and 23 June 2004.
(13)
By letter dated 14 May 2004, which was confirmed on 3 June 2004, the French authorities stressed that the opening decision did not cover all the facts forming the subject-matter of the Commission's investigation. By email dated 9 June 2004, which was confirmed by letter dated 10 June 2004, the French authorities submitted comments on the NERA report, which were supplemented by letter dated 21 June 2004.
2. DESCRIPTION OF FRANCE TELECOM
(14)
As indicated in the opening decision, the present proceeding concerns the France Télécom group as a single economic entity. Since the beginning of the proceeding, the Commission has referred to the Company's consolidated accounts. In adopting this approach, the Commission is taking a line which is consistent with economic reality as reflected by the market, which assesses France Télécom's performance and financial strength on the basis of its consolidated results. In the opening decision, the France Télécom group was described as follows (unofficial translation from the original French):
‘Originally part of the Ministry of Posts and Telecommunications, France Télécom was formed in 1991 as a public operator endowed with legal personality. Since 31 December 1996 the operator has had the status of a public limited company, and since October 1997 it has been listed on the First Market of Euronext Paris SA and on the New York Stock Exchange (NYSE). In 2002, the State held a majority stake in France Télécom of 56,45 %, the remainder being divided between the public (32,25 %), France Télécom itself (8,26 %) and employees of the Company (3,04 %) (17).
France Télécom is an operator and a supplier of telecommunications services, active in France and throughout the world with a presence in the following markets: fixed telephony, mobile telephony, the Internet and other information services, services to business, TV broadcasting and cable TV. Following the reorganisation of Orange plc and the formation of Orange SA as France Télécom's main mobile telephony subsidiary, its placing on the stock exchange and the placing on the stock exchange of Wanadoo SA, France Télécom's activities are henceforth organised in four segments: (i) Orange; (ii) Wanadoo; (iii) fixed, voice and data services in France; and (iv) fixed, voice and data services outside France, mainly through its subsidiary Equant.
At the end of 2001, France Télécom employed 211 554 people worldwide, including 146 882 in France’ (18).
(15)
The above description remains valid for the period covered by this Decision. During that same period, the group's structure was characterised by ‘a policy of out-and-out subsidiarisation through the creation of four listed companies centred on France Télécom: Orange, Wanadoo, TPSA in Poland and Equant. The group thus took shape in a quite paradoxical and unbalanced manner, with the parent company France Télécom SA carrying all the debt while the subsidiaries concentrated on growth …’ (19).
3. CHRONOLOGICAL DESCRIPTION OF THE FACTS AND FINANCIAL SITUATION OF THE COMPANY
3.1. The data known during the first half of 2002 and events at that time
(16)
The Commission would point out that the analysis under the state aid rules of a State's conduct must be carried out using the data and information available at the time of each state intervention. Given that the present case concerns events occurring in 2002 and early 2003, it is essential, in order to understand the facts on which the Commission has based its analysis of the State's conduct, to set out chronologically the evidence available from the time of publication of the results for the 2001 financial year. The financial results for the first half of 2002 were not made public until 13 September 2002. Before that date, the last financial results to have been published by France Télécom were those for the 2001 financial year. However, some additional data emanating from financial analysts were to be found in the latters' forecasts, opinions and recommendations.
(17)
As is clear from the analysis below, France Télécom was, from June 2002 onwards, a company with serious structural problems and an unbalanced balance sheet. During the first quarter of 2002, the nature of these problems was revealed by the publication of the 2001 accounts. The publication of these accounts showed improved operating results and substantial cash flow generation. Nevertheless, it also pointed up the heavy weight of the past, which wiped out the net result before exceptional provisions of EUR 1,9 billion, turning it into a EUR 8,3 billion loss. While the provisions correct the value of France Télécom's assets to a more realistic level, the colossal size of the debt, at EUR 63 billion, persists. This context, together with the inadequacy of the expected cash flow, helps explain the serious structural problems. This is clearly demonstrated by the HSBC study submitted by France Télécom (see Section 4), which calculates a financing requirement of EUR 35 billion over the period 2002-05.
(18)
On 31 December 2001, France Télécom's net debt came to EUR 63,5 billion, as can be seen from Tables 1 and 2.
Table 1
Debt (leverage) ratios
1999
2000
2001
Debt ratio (20)
0,78
0,89
0,92
Debt/equity (21)
3,61
8,25
12,16
Times interest earned (22)
14,52
5,39
3,2
Source: NERA.
Table 2
Bonds falling due from the third quarter (Q3) of 2002 to the fourth quarter of 2003
2002
2003
Q3
Q4
Q1
Q2
Q3
Q4
Total 2003
Amount in EUR billion (23)
3,89
3,61
8,86
4,08
4,09
2,23
19,26
Source: NERA.
(19)
In the light of these data, the Commission would observe that, in view of the scale of its debt, France Télécom was forced to announce, on 21 March 2002, not only a major clean-up of its balance sheet through balance sheet provisions and asset disposals totalling EUR 27,2 billion (comprising disposals worth EUR 17 billion and exceptional provisions of EUR 10,2 billion), but also a substantial increase in the available cash flow to the tune of EUR 14 billion for the period 2002-05.
3.1.1. The downgrading of France Télécom's credit rating
(20)
During the first half of 2002, France Télécom's situation worsened rapidly, as reflected in a series of downgrades in the Company's credit rating. Thus, on 27 March 2002, the Moody's credit rating agency announced a downgrading of France Télécom's rating for long-term debt (24)/ (25).
(21)
On 28 March 2002, Standard & Poor's (‘S & P’) maintained France Télécom's rating but downgraded its prospects to negative (26) following news concerning Mobilcom.
(22)
On 13 May 2002, Moody's, doubting the Company's capacity to implement its debt-reduction strategy, announced a possible downgrade of France Télécom's short-term debt rating (27).
(23)
On 14 May 2002, Standard & Poor's maintained France Télécom's existing rating (28).
(24)
On 24 June 2002, Moody's downgraded France Télécom's rating. The Company's prospective rating was maintained at a negative level (29). Moody's decision at that time was based on the fact that the agency did not expect France Télécom and Orange to be in a position to generate sufficient cash flow to reduce the group's consolidated debt. Although Moody's was not concerned about the likelihood of a liquidity crisis in the Company in the immediate future, it did point out that France Télécom was confronted with debts of about EUR 15 billion falling due in 2003.
(25)
On 25 June 2002, Standard & Poor's downgraded France Télécom's short- and long-term debt rating (30), basing its decision on the difficulties concerning Mobilcom and the Company's inability to reduce its debt far and fast enough. S & P also mentions France Télécom's considerable financing requirements, referring also to the EUR 15 billion of debt coming due in 2003.
(26)
This downward trend was confirmed several times (31) over the next few days. On 12 July 2002, Standard & Poor's even drew attention to a potential problem involving the refinancing of the debt coming due in 2003. The downgrading of France Télécom's rating clearly revealed the Company's debt problems (32), worsened by the uncertainty surrounding Mobilcom.
(27)
Table 3 recapitulates the various positions of S & P, Moody's and Fitch regarding France Télécom's rating:
Table 3
Events connected with credit ratings
S & P
Moody's
Fitch
Short term
Long term
Short term
Long term
Short term
Long term
Situation in May 2002
A2
BBB+
P2
Baa1
F2
BBB+
24 June 2002
P3
Baa3
25 June 2002
A3
BBB
05 July 2002
F3
BBB-
12 July 2002
BBB-
Source: NERA.
3.1.2. Analysis of credit spreads
(28)
It is important that the behaviour of spreads in the financial markets be examined. The spreads relating to the debt of a company reflect the assessment, by the markets, of the risk linked to the capacity of the company to meet its obligations in respect of the payment of interest and the reimbursement of the debt upon maturity. Spreads influence the valuation, by the market, of bonds and the level of interest that may be required for the issue of new bonds. A widening of the spreads indicates an increase in the risk attributed to the issuer and/or the bond. The Commission has analysed France Télécom's spreads for the period covering the 2002 financial year and has established a relatively high assessment of the risk at the beginning of July.
(29)
Normally, the spreads for long-term debt are greater than those for short-term debt, with several factors coming into play here: lack of visibility, uncertainty as to future prospects, macroeconomic parameters, and the trend in interest rates. However, an examination of Table 3 shows clearly that the problems encountered by France Télécom were particularly concentrated on short-term debt. The spreads study concerning France Télécom has thus demonstrated that the very short-term risks were higher than those in the medium and long term. This phenomenon is called a ‘spread inversion’. The frequency of these inversions, during which debt coming due in one year was considered by the market to be more risky than three-year debt, was particularly evident during the period July-September 2002.
(30)
Table 4 provides a graphical representation of the behaviour of France Télécom's spreads.
Table 4
Credit spreads for bonds with a 1- and 3-year maturity - France Télécom
Source: Bloomberg.
(31)
A different way of observing the increased risk associated with France Télécom's debt is to study the price of its bonds. Table 5 shows a subset of France Télécom's bonds. The fall in the price of the bonds in June/July 2002, which is a mirror image of the increase in the credit spreads, reflects a lesser value of France Télécom's debt due to the increased risk of default perceived by the market.
Table 5:
Price of France Télécom's bonds from 1 May 2002 to 24 July 2002
Source: Bloomberg.
(32)
It is clear, moreover, that, despite the difficulties of a few other operators in the telecommunications sector in Europe, the difficult situation with which France Télécom was faced was a direct result of the state of its balance sheet and financial structure.
(33)
This is highlighted by a study of the spreads of Deutsche Telekom and KPN, as shown in Tables 6 and 7.
Table 6:
Credit spreads for bonds with a 1- and 3-year maturity - KPN
Source: Bloomberg.
Table 7:
Credit spreads for bonds with a 1- and 4-year maturity - Deutsche Telekom
Source: Bloomberg.
(34)
This study reveals that Deutsche Telekom also experienced spread inversions, but they were of short duration only and on a much smaller scale. The levels attained by France Télécom during the period June/July 2002 were much higher.
3.1.3. France Télécom's share price
(35)
At the same time, France Télécom's share price fell significantly during the first half of 2002, reaching its lowest level first on 27 June 2002 (EUR 7,79), and then on 30 September 2002 (EUR 6,01), as can be seen from Table 8.
Table 8:
France Télécom's share price
Source: Bloomberg.
3.1.4. The events of July 2002
(36)
In an interview published in Les Échos on 12 July 2002, the French Minister for Economic Affairs, Finance and Industry (‘the Minister for Economic Affairs and Finance’) said that: ‘The State shareholder will behave like a prudent investor and would take appropriate steps if France Télécom were to face any difficulties … I repeat, if France Télécom were to face any financing problems, which is not the case today, the State would take whatever decisions were necessary to overcome them’ (33).
(37)
On that same day, as indicated above, S & P downgraded France Télécom's rating to BBB-. This downgrade was nevertheless limited to a rating still qualifying as investment grade: any further downgrade would have led to the Company's debt being accorded junk-bond status, as being no longer of investment grade. The fact that France Télécom's rating was being kept at investment grade was commented on by Goldman Sachs in a report dated 22 July 2002, which states that France Télécom was about to be downgraded to junk-bond level by S & P and Moody's (34).
(38)
In its press release of 12 July 2002, S & P states that the reason why it had decided to continue France Télécom at investment grade was to do with the State's indications as to its intentions towards the Company: ‘France Télécom could face certain difficulties refinancing its debt obligations coming due in 2003. Nevertheless, the State's indication underpins France Télécom's investment-grade credit quality’. This assurance had been provided, firstly, directly by the French Government to S & P: ‘the French State - which owns 55 % of France Télécom - has made clear to Standard & Poor's that it will behave as an aware investor and would take appropriate steps if France Télécom were to face any difficulties. France Télécom LT rating cut to BBB-’ (35).) and, secondly, publicly in the interview referred to in paragraph 36.
(39)
In the light of the above, there is no question but that in July 2002 France Télécom was facing a crisis of confidence. Rating agencies and analysts alike were convinced that the Company risked not being able to implement the refinancing plan presented by the management in order to meet its maturities. The Company was therefore faced with an acute financing problem linked to its indebtedness (36). Nevertheless, the agencies had maintained the Company's rating at investment grade on the strength of the State's indications. A downgrading of the rating would have worsened the crisis and lessened the Company's ability to cope. In the words of the group's former CEO, Mr Michel Bon: ‘It will be in June 2003, therefore, that France Télécom's financing problems may become critical or even insurmountable. If, between now and then, France Télécom has not regained access to the market (owing to its penalising rating), the State will have to find ways of helping it to refinance itself’ (37).
3.2. The data published on 13 September 2002 and events at that time
3.2.1. The data published on 13 September 2002
(40)
The conclusion set out in paragraph 39 was confirmed retroactively in September 2002 when France Télécom's half-yearly accounts were presented. From its scrutiny of the half-yearly accounts published on 13 September 2002, the Commission notes an improvement in France Télécom's figures for the first half of 2002 compared with the previous year: an increase of 10 % in turnover, 13,2 % in EBITDA and 17,3 % in the operating result. The Commission notes also the sustained growth in mobile telephony and the improved performance of the Internet business. However, the operating result of the fixed telephony segment in France, which accounted for 31 % of turnover for the same period, was down by 12,2 %.
(41)
Alongside the good operating results described above, France Télécom confirmed the imbalance in its financial situation. The negative result of EUR 12,2 billion as at 30 June 2002 was primarily due to the substantial provisions made for investments. As a result of this half-year loss, from being positive overall France Télécom's consolidated own funds became negative as at 30 June 2002 to the tune of EUR 440 million.
(42)
A simplified analysis of cash flow as at 30 June 2002 shows that net debt increased during the first half of 2002 by EUR 6,3 billion inasmuch as EBITDA, at EUR 6,870 billion, did not cover expenditure represented by:
-
debt interest (EUR 3 099 million),
-
investments (EUR 3 820 million),
-
the repurchase of France Télécom shares from Vodafone (EUR 4 973 million),
-
the repurchase of Orange shares from E.On (EUR 950 million), and
-
the payment of taxes (EUR 608 million).
(43)
Of a net indebtedness of EUR 69,69 billion as at 30 June 2002, the bulk, or EUR 50,6 million worth, is made up of bonds. Table 9 gives a breakdown, by major category, of the various components of the debt.
Table 9
EUR billion
30 June 2002
Exchangeable or convertible bonds
10,75
Bonds
39,85
Leasing operation
0,42
Bank loans
6,62
Other, non-bank loans
0,72
Drawings on syndicated loans of EUR 15 billion
8,15
Drawings on syndicated loans of USD 1,4 billion
1,48
Other bank overdrafts and other short-term borrowings
4,14
Total gross debt
72,13
Movable investments
(0,15)
Cash in hand
(2,29)
Net indebtedness
69,69
Source: France Télécom's consolidated accounts: half year ended 30 June 2002.
(44)
The maturity schedule of this debt is characterised by its short duration. Thus, EUR 12,9 billion of debt comes due in 2003, including EUR 10,5 billion worth of bonds (38), EUR 1,0 billion worth of loans to subsidiaries, and EUR 1,4 billion worth of private investment.
(45)
During the first half of 2004, EUR 5,5 billion worth of bonds and EUR 6,4 billion worth of credit lines (EUR 1,4 billion and EUR 5 billion of the EUR 15 billion back-up facility) came due, giving a total of EUR 11,9 billion. France Télécom was therefore faced with having to repay EUR 24,8 billion between 1 January 2003 and 30 June 2004.
(46)
During the second half of 2004, EUR 2,8 billion worth of bonds and EUR 2,6 billion worth of loans to subsidiaries will come due, giving an amount of EUR 5,4 billion and a total amount of EUR 17,4 billion for 2004 as a whole.
(47)
In 2005, lastly, EUR 8,5 billion worth of bonds, an amount of EUR 10 billion corresponding to the balance of the EUR 15 billion back-up facility, and an amount of EUR 0,1 billion relating to private investments will come due, giving a total of EUR 18,6 billion during the course of 2005.
(48)
During the period 2003-05, France Télécom will be faced with a total repayable debt of EUR 48,9 billion.
(49)
As was mentioned in the opening decision, the Commission would point out that France Télécom's debt stems mainly from the massive acquisitions engaged in by the Company as from 1999 (39), which were financed primarily out of cash (40). More than EUR 100 billion was thus spent by France Télécom in its quest for growth, 80 % of which was paid for in cash (41).
(50)
The Commission would also point out that the Company's external growth was focused on the mobile telephony sector (42)(including the acquisition of Orange plc (43), which was the most costly, and the Mobilcom transaction (44), without forgetting the other transactions involving fixed telephony (e.g. TPSA (45), the Internet (Freeserver) or cable (NTL) (46).
3.2.2. September 2002
(51)
On 12 September, the Government announced that it had accepted the resignation of France Télécom's CEO, Mr Michel Bon, but remained silent about the appointment of a new CEO (47). On 13 September, the Government reiterated in a press release its support for the Company and expressly indicated that it had decided to take part in a forthcoming operation aimed at increasing France Télécom's own funds: ‘… After the exceptional losses of the first six months, France Télécom is faced with a serious shortage of capital. This financial situation is weakening the company's potential. The Government is therefore determined to exercise its responsibilities to the full. … Taking note of the new situation brought about by the considerable deterioration in the accounts, Mr Bon has tendered his resignation to the Government, which has accepted it. The resignation will take effect at a board meeting to be held in the next few weeks, at which a new chairman will be presented … The new chairman will in a very short space of time propose to the board a plan for improving the company's accounts, enabling its debts to be reduced and its financial structure to be restored while maintaining its strategic advantages. The State will help France Télécom implement this plan and will contribute to a very substantial strengthening of the company's capital base, according to a timetable and in a manner to be determined in the light of market conditions. In the meantime, the State will, if necessary, take steps to prevent the company from being faced with any financing difficulties …’ (48).
(52)
That same day, Moody's changed the outlook of France Télécom's debt from negative to stable owing to the restated commitment to support the Company (49).
3.2.3. October 2002
(53)
On 2 October 2002, the Government appointed Mr Thierry Breton CEO of France Télécom. A press release of the Minister for Economic Affairs and Finance announced the appointment. In the same press release, the Government repeated its commitments: ‘On a proposal from the company's board of directors, the Council of Ministers has decided to appoint Thierry Breton chairman of France Télécom … To that end, the new chairman will immediately carry out an inventory of the company, the findings of which will be communicated to the board in the weeks ahead and which will form the basis for a financial recovery and strategic development plan enabling the company's debt to be reduced while building on its strengths. Within this framework, Thierry Breton will enjoy the support of the State in its capacity as shareholder, determined as it is to exercise its responsibilities to the full. The State will assist in implementing the recovery measures and will contribute, for its part, to the strengthening of the company's own capital base in a manner to be determined in close collaboration with the company's chairman and board. As already indicated, the State will, if necessary, take steps to prevent the company from being faced with any financing difficulties’ (50).
3.2.4. December 2002/January 2003
(54)
On 4 December 2002, at a meeting of the Company's board, an action plan entitled Ambition FT 2005 (51)(‘the Ambition 2005 plan’) was presented by France Télécom's new management, being aimed, according to the French authorities (52), at bringing about a noticeable improvement in the Company's operational performance and offering the prospect of a satisfactory return on capital invested. Thus, the medium-term objectives were (i) to meet France Télécom's financing requirements; and (ii) to achieve a net reduction in debt and a reconstitution of capital, a sine qua non for the Company's rehabilitation in the long run in terms of borrowing on the stock market. In the HSBC report, it is stated that: ‘Assuming a business plan which incorporates the operational improvement in the TOP programme, we consider that France Télécom has a refinancing requirement over the period 2002-07 of approximately €22 billion ... [On the other hand], assuming a business plan which does not incorporate the operational improvement in the TOP programme, we estimate that France Télécom has a refinancing requirement over the period 2002-07 of approximately €35 billion’.
(55)
The key elements of the plan in question and the measures which the French authorities envisaged adopting with regard to France Télécom were notified to the Commission by letter dated 3 December 2002 and additional information was submitted by letters dated 14 and 15 January 2003. A detailed description of the Ambition 2005 plan and its various aspects (operations, debt renegotiation and strengthening of the Company's capital base) as well as of the other measures envisaged by the French authorities is given in the opening decision and is not repeated in this Decision.
(56)
The presentation of the Ambition 2005 plan was accompanied by a press release of the Minister for Economic Affairs and Finance in which the Government confirmed its support for the plan, its commitment to take part in the operation to strengthen the Company's capital base and the making-available of a shareholder loan in the form of a EUR 9 billion credit line. The parts of the press release that are relevant to this Decision are as follows: ‘Francis Mer, Minister for Economic Affairs, Finance and Industry, confirms the State's support for the action plan approved by France Télécom's board of directors on 4 December. 1/The France Télécom group is a coherent industrial entity with a remarkable track record. However, the company is now faced with an unbalanced financial structure and a need for capital and refinancing in the medium term. This state of affairs is due to the failure of past investments, which were carried out badly at the height of the financial “bubble” and, more generally, to the market downturn. The impossibility for France Télécom to finance its growth otherwise than through debt has made the situation worse. 2/The State, as majority shareholder, has asked the new management to restore the company's financial equilibrium while maintaining the group's integrity … 3/In the light of the action plan drawn up by management and the investment return prospects, the State will participate in the EUR 15 billion strengthening of the company's capital base in proportion to its share in the capital, giving an investment of EUR 9 billion. The State shareholder thus intends to act like a prudent investor. It will be for France Télécom to work out the detailed arrangements and precise timetable for the strengthening of its capital base. The Government wants the utmost account to be taken during the operation of the situation of individual shareholders and of employees with shares in the company. To enable the company to launch a market operation at the most opportune moment, the State is prepared to make an upfront prepayment towards the strengthening of the capital base in the form of a temporary shareholder loan, remunerated at market rates, placed at France Télécom's disposal. 4/The State's entire shareholding in France Télécom will be transferred to a public industrial and commercial entity, ERAP. The latter will borrow on the financial markets in order to finance the State's share in the strengthening of the company's capital base’ (53) .
(57)
A few days after the presentation of the Ambition 2005 plan, France Télécom launched two successive bond issues on 11 and 12 December 2002 for a total amount of EUR 2,9 billion. The first bond issue was for a total amount of EUR 2,5 billion over seven years, at a fixed rate of 7 %, or Euribor + 290bp. For France Télécom, the cost of the fixed-rate tranche is 7,165 % (all-in). The second bond issue was placed on the pound sterling (GBP) market for an amount of GBP 250 million at a fixed rate of 8 % over 15 years, or LIBOR + 330bp (54). Other issues were made on 15 January 2003 for a total amount of EUR 5,5 billion (55). These were part of a three-tranche issue (EUR 1 billion at a fixed rate of 6 %, scheduled to mature in 4,7 years; EUR 3,5 billion at a fixed rate of 7,5 %, scheduled to mature in 10 years; and EUR 1 billion at a fixed rate of 8,125 %, scheduled to mature in 30 years). On 10 February 2003, that part of the EUR 15 billion syndicated loan which had matured, namely approximately EUR 5 billion over three years at the rate Euribor + 125bp, was renewed.
(58)
On 17 December 2002, S & P indicated that, since July 2002, the Government's support had been a key factor in maintaining France Télécom's investment-grade status (56) and that its announcement concerning the shareholder loan and the commitment to subscribe, in proportion to its shareholding, to a EUR 15 billion recapitalisation operation had confirmed that support (57).
3.2.5. February/March 2003
(59)
France Télécom ended the 2002 financial year with a loss of approximately EUR 21 billion and a net financial debt of almost EUR 68 billion.
(60)
On 4 March 2003, the operation to strengthen the Company's capital base by EUR 15 billion as envisaged by the Ambition 2005 plan was launched. The operation was broadly successful and was terminated on 11 April. On 14 April 2003, the State held 58,9 % of France Télécom's capital, of which 28,6 % through ERAP.
(61)
The Commission notes that the capital increase largely met the structural needs of France Télécom's financing. Thus, following the operation, France Télécom's credit rating began to improve: on 14 May 2003 S & P raised its rating to BBB, outlook stable (from A-3 to A-2 for its short-term rating) and on 8 August 2003 Fitch raised its rating from BBB- to BBB. The Commission would point out in this connection that the agencies thereupon ceased to consider the State's support to be a key factor in the Company's credit rating (58).
4. COMMENTS FROM THIRD PARTIES
(62)
The Commission has received comments from a number of interested third parties. The essence of those comments is reproduced in this section.
4.1. Comments from Telecom Italia
(63)
Telecom Italia stresses that any aid granted to France Télécom is likely to affect competition in the telecommunications markets, and in the French market in particular. It is therefore essential that the aid granted by the French authorities should be accompanied by compensatory measures aimed at reducing its impact on competition. In this context, it would be particularly appropriate to adopt regulatory measures making for easier and speedier access by new entrants and their use of France Télécom's infrastructures, particularly as regards access to the local loop and the length of time it takes to negotiate interconnection and provisioning agreements.
4.2. Comments from WorldCom
(64)
WorldCom indicates that it shares the Commission's analysis as set out in the opening decision. It points out that the aid granted by the State to France Télécom enabled the latter to obtain the liquidity it needed to reimburse its debt without having to dispose of any strategic assets. It adds that the support of the State enabled France Télécom to ensure the continuance of its industrial strategy, that is to say, the creation of a series of vertically integrated operators of telecommunications networks and services. WorldCom concludes that this industrial strategy entails anticompetitive practices, including the existence of cross-subsidies and of a price squeeze between the price proposed by France Télécom to the final customer and the price of access proposed to competitors of the historical operator, and the possibility of making tailor-made bids that are impossible to match when public contracts are being awarded (the ‘Sipperec’ and ‘public assistance/Paris hospitals’ contracts being two such examples).
(65)
In order to reduce the distortions of competition caused by the aid granted to France Télécom, WorldCom proposes compensatory measures of a structural nature, including the disposal of assets such as Global One/Equant, Orange, Wanadoo/Oléane and/or the local network in France, or else the effective and transparent separation of France Télécom from its commercial activities. Under the heading of behavioural quid pro quos, WorldCom mentions a to-be-wished-for accounting segregation between France Télécom's commercial and non-commercial activities, full publication of its accounts and a monitoring of its prices.
4.3. Comments from C
(66)
C submits the following comments:
(a)
the measures at issue constitute state aid. C argues that, in accordance with the Guidelines on state aid for rescuing and restructuring firms in difficulty (59)(‘the Guidelines’), where public funding is provided to a firm which is in financial difficulties there is a presumption that state aid is involved. C states that the announcement of and terms governing the making available by the French State to France Télécom of the EUR 9 billion credit line and the participation by the French State in the recapitalisation of France Télécom involve aid elements. It points out that the prudent investor test is not satisfied as regards the arrangements for providing the credit line inter alia because of the interest rate proposed and the amount of the commitment fee. It also points out that the principle of concomitance has not been complied with in so far as the French authorities granted the credit line and announced their participation in the recapitalisation prior to the announcement of the Ambition 2005 plan and prior to the firm commitment of the investors. Inasmuch as France Télécom's competitors are not in a position to raise capital on these terms and on such a scale, France Télécom has received an advantage which it would not have obtained under market conditions.
(b)
the measures at issue cannot be considered compatible within the meaning of the Guidelines. Alternatively, C takes the view that the aid granted should be strictly limited to that which is necessary to ensure France Télécom's viability and that it must not help to finance France Télécom's aggressive expansion. C adds that France Télécom's privatisation would ensure compliance with the ‘one time last time’ principle applicable to restructuring aid. It draws the Commission's attention to the distortions of competition in the German telecommunications market caused by the aid measures and proposes, by way of compensatory measures within the meaning of the Guidelines, the sale of all or part of France Télécom's subsidiary Orange.
4.4. Comments from A
(67)
A points out that, as indicated in the opening decision, the State's intention of restoring France Télécom's financial health by granting a EUR 9 billion shareholder loan and the provision by the State to France Télécom of an ‘intangible’ guarantee covering its bond issues are measures which do not satisfy the prudent private investor test and which contain aid elements. It adds that France Télécom's policy regarding the collection of royalties for its patents also contains aid elements.
4.5. Comments from Bouygues and Bouygues Télécom
(68)
Bouygues and Bouygues Télécom submit the following comments:
(a)
Bouygues Telecom points out that the unfailing and irrevocable support of the State is the cornerstone of France Télécom's recapitalisation plan, which has led to the Company's recovery. Thus, according to Bouygues Telecom, only the French State could, in view of the Company's critical financial situation, restore the markets' confidence and create a virtuous circle enabling it to meet its short-term commitments and launch a huge recapitalisation operation under favourable economic conditions. In Bouygues Telecom's opinion, the following measures satisfy the requirements of Article 87(1) of the Treaty and hence constitute state aid:
(i)
the statements made by the Minister for Economic Affairs and Finance during the period from 12 July to 4 December 2002 constitute a state guarantee committing the State's resources;
(ii)
the shareholder loan and the operation to strengthen the Company's capital base commit state resources;
(iii)
the measures at issue confer advantages on France Télécom which it would not have obtained under normal market conditions;
(iv)
the measures at issue do not satisfy the test of a prudent private investor operating under normal market conditions;
(v)
the measures at issue affect competition;
(vi)
the measures at issue affect intra-Community trade.
(b)
the measures at issue cannot be considered compatible within the meaning of the Guidelines.
(69)
As a preliminary remark, Bouygues Telecom observes that the policy of expansion carried out in 2000 in the mobile telephony sector with encouragement from the State led to a worsening of the operator's financial and economic situation, which an initial savings drive did not succeed in containing.
(70)
As regards the statements by the Minister for Economic Affairs and Finance, the unfailing and repeated support of the State, expressed in a series of announcements from 12 July 2002 to 4 December 2002 and supplemented by a series of measures including the opening of the EUR 9 billion credit line and the irrevocable commitment by the State to participate in a capital increase in proportion to its shareholding in the Company, amounts to a commitment on its part, from which it cannot withdraw, to make good by all available means any failure by the Company to meet its financial commitments. Bouygues Telecom stresses here that this commitment constitutes a veritable state guarantee producing legal effects committing the State's resources. It adds that the State's guarantee is unlimited in amount and time.
(71)
Bouygues Telecom refers in this connection to the Crédit Foncier de France (CFF) decision (60), in which the Commission found that the public declarations by the Government had the object and effect of reassuring the bank's creditors about the quality of their loans and could not be considered - as the French authorities maintained - to be a mere political commitment without any legal value. Bouygues Telecom thus states that, in that case, the declarations of support had the effect of reassuring those of CFF's creditors who had not yet demanded the immediate repayment of their loans, of avoiding the need for CFF to use the credit line opened by the State on its behalf and of enabling the latter to devise and implement a restructuring plan.
(72)
Bouygues Telecom points out, furthermore, that the Community-law approach is borne out by an analysis of domestic law. Under French commercial law, such declarations of support may be likened to letters of intent, which, as can be seen from recent case law, the courts equate with actual guarantees (61). Bouygues Telecom adds that, even if the French Court of Cassation has not yet adopted a position in principle on the general value of a unilateral commitment as a source of obligation, it does recognise the value thereof on a case-by-case basis.
(73)
In preparing its comments, Bouygues Telecom called on the services of an expert (62) who stated that it followed from a long line of judgments by the French administrative courts that the existence of a commitment entered into by an administrative authority must be assessed in the light, not of the commitment's form, but of its intrinsic characteristics. The expert remarked that that case law was expressly applied in the specific case of declarations: the administrative courts thus considered that, even where they were not accompanied by any specific legal act, the promises constituted commitments as they were the embodiment of the administrative authority's will. For there to be a commitment on the part of the State, it was sufficient for the authority to have behaved in such a way as to convince others that it would act in a certain manner. It mattered little, therefore, whether the commitment was written or verbal or whether it could simply be deduced from the authority's conduct, the only condition laid down by the administrative courts being that the promise in question must be firm and precise or sufficiently persuasive.
(74)
Bouygues Telecom's expert stated that, in the present case, the declarations by the Minister for Economic Affairs and Finance satisfied all the criteria for being characterised as a commitment by the State. In each of his declarations, the Minister manifested his wish to lend France Télécom his unconditional support - in accordance with procedures which, moreover, were expressly specified: the strengthening of the Company's capital base, the taking of measures enabling the Company to avoid any financing problems, and the recourse to ERAP, to which would be transferred the State's entire shareholding. Inasmuch as those declarations were firm and precise and made without reservations, they could be construed as constituting commitments by the State. Furthermore, because the Minister had had his declarations published, they could not be mere declarations of intent.
(75)
Bouygues Telecom's expert stressed that, since those promises could be construed as constituting commitments by the State, they had by their very nature legal value and were of such a character as to render the State liable, whether they were legal or not, vis-à-vis France Télécom, its creditors and its employees.
(76)
Bouygues Telecom maintains that the declarations made by the French Government on and after 12 July 2002 are ‘administrative acts’ binding on the State which are of such a character as to render the State answerable before the administrative courts. The latter thus have to judge any conduct of the authorities through the resulting administrative acts, whatever their form, whether they cause damage or not, and the effects of which stem either from a modification of the regulatory set-up or from an effect on the personal situation of the plaintiff. Bouygues Telecom also submitted to the Commission on 26 May 2004 another study (63) which also comes to the conclusion that the declarations by the State constitute the expression of a formal, precise and irrevocable commitment by the State - legally sanctionable, where appropriate, via the incurment of the liability of the State should it be at fault in failing to respect its commitments towards France Télécom.
(77)
Bouygues Telecom states that there is therefore no doubt that the measures at issue constitute, not psychological support as the French authorities have maintained, but a guarantee legally binding on their author.
(78)
Bouygues Telecom states lastly on this point that the binding nature of the declarations made by the State by way of the guarantee is confirmed by a circular of the Ministry of Economic Affairs and Finance dated 22 July 2003 which expressly refers to the existence of implicit guarantees (64).
(79)
With regard to the shareholder loan and the operation to strengthen the Company's capital base, Bouygues Telecom maintains that, firstly, the opening of a EUR 9 billion credit line for the benefit of France Télécom and, secondly, the irrevocable commitment by the State to participate in any future capital increase in proportion to its shareholding in the Company followed by the recapitalisation operation as such, are the implementation of the state guarantee and are financed by state resources. In this connection, Bouygues Telecom adds that the recourse to ERAP in the granting, by the French authorities, of a EUR 9 billion credit line for the benefit of France Télécom in no way alters the state origin of the funds. It points out that the recourse to ERAP means that France Télécom benefited, firstly, from an advantageous interest rate owing to its status as an industrial and commercial public establishment and, secondly, from the express guarantee provided by the State for an amount of EUR 10 billion (65). As a result, the measures at issue are financed by state resources, even if the credit line has ultimately not been used.
(80)
In its additional comments of 11 April 2003, Bouygues Telecom maintains that, in view of the Company's financial situation, the recapitalisation operation carried out on 24 March 2003 was possible only because of the prior intervention of the other aid measures. Consequently, the recapitalisation constitutes per se state aid as it stems directly from prior state aid (66).
(81)
As regards the condition relating to the advantage, Bouygues Telecom points out that the occurrence giving rise to the guarantee took place subsequently to the reduction in France Télécom's credit rating by the rating agencies with a view to restoring the market's confidence.
(82)
Again on this point, Bouygues Telecom states that the guarantee had the effect of enabling France Télécom to gain renewed access to the financial markets. Thus, the guarantee improved the prospects attaching to France Télécom's credit rating and enabled it to avoid junk-bond classification. Bouygues Telecom observes next that the stock-exchange price of France Télécom's shares improved considerably. In addition, the spreads on the bond market narrowed after the month of June 2002 and France Télécom was able to stagger its debt maturities and face up to the liquidity wall. Bouygues Telecom stresses that, not only did the guarantee make possible France Télécom's very recourse to the financial market, but it also enabled the bond issues to be made at a rate which did not reflect France Télécom's true financial situation.
(83)
Bouygues Telecom states more precisely, in its comments of 11 April 2003, that the announcement and implementation of the state support gave rise to aid at the origin of advantages linked to the shareholder loan and the recapitalisation. These advantages had the effect inter alia of moving the liquidity wall further away, that is to say, of increasing the amount of financing available for meeting debt repayments and of permitting an actual and potential postponement of payments and actual and potential cost savings.
(84)
Concluding on this point, Bouygues Telecom maintains that the advantage gained by France Télécom amounts to more than EUR 40 billion (EUR 3 billion in respect of all the support measures taken by the French State on France Télécom's behalf and EUR 36,7 billion in respect of the State's participation in the Company's recapitalisation), which amount takes no account of the considerable latitude granted to France Télécom as a result of the removal of all financial concerns, the liquidity wall being shifted by almost EUR 43 billion.
(85)
In its additional comments of 7 January 2004, Bouygues Telecom states that the advantage enjoyed by France Télécom as a result of the State's irrevocable commitment of support may be estimated at more than EUR 30 billion, while the advantage derived from the recapitalisation operation may be put at more than EUR 50 billion.
(86)
As to the prudent private investor test, Bouygues Telecom argues that the support measures do not satisfy that test for the following reasons:
a)
Unconditional, unlimited commitment: Bouygues Telecom takes the view that the State's declarations constitute a firm and unconditional legal commitment which an investor would never have undertaken without entering the slightest reservation. It is therefore an unlimited guarantee granted to a company which is extraordinarily leveraged and fragile in the short term. In Bouygues Telecom's opinion, the measure at issue does not fulfil the criteria mentioned in the Commission Notice on the application of Articles 87 and 88 of the EC Treaty to state aid in the form of guarantees (67)(hereinafter called ‘the Notice on state aid in the form of guarantees’) in so far as, in particular, France Télécom was in financial difficulties at the time the guarantee was granted and in so far as the guarantee does not relate to any specific transaction and gives rise to no remuneration. France Télécom has therefore secured advantages which it would not have secured under normal market conditions.
b)
Terms governing the granting of the shareholder loan: Bouygues Telecom argues that the mechanism adopted by the State meets by and large a concern falling within the realm of public finances (compliance with the Maastricht criteria, notably), and is not in keeping with the principle of a prudent investor operating in a market economy. Repayment of the loan subscribed by ERAP on behalf of the State with a view to participating in the recapitalisation is not assured. The method of repayment first and foremost envisaged is linked to the sale of shares, the profit on which is potential and cannot for that reason confer on the investment in question the nature of a ‘prudent’ transaction. Bouygues Telecom points out that the guarantee granted by the French State to ERAP to the tune of EUR 10 billion enabled ERAP to gather together the funds needed to grant the credit line on advantageous terms, i.e. at a rate of 3,375 %. Any prudent private investor would have carried out such a transaction at a higher cost for which he would have demanded specific guarantees linked to the company's assets.
c)
Recapitalisation: In substance on the commitment by the French authorities to recapitalise France Télécom and the recapitalisation operation itself, Bouygues Telecom claims that the prudent private investor test is not satisfied in the present case as the State undertook to participate in France Télécom's recapitalisation on 12 July 2002, i.e. prior to the existence of the Ambition 2005 plan, without knowing France Télécom's exact economic situation, which had become much worse, and without the concomitant participation of private investors. In this connection, Bouygues Telecom stresses the following points:
-
The company's financial situation: Bouygues Telecom stresses that the historical operator's financial health at the time of the decision to invest prevented it from resorting to private investors without the State's support (EUR 70 billion of losses, EUR 8 billion of negative equity and debt maturities amounting to EUR 50 billion over the following three years). Moreover, the plan presented by Mr Bon at that time did not appear relevant in the eyes of the market and was followed by France Télécom's downgrading by the rating agencies. This situation was reflected by the statement by Thierry Breton before the Senate finance committee (68).
-
Return on the transaction: Bouygues Telecom indicates that the period for calculating the return on the investment begins at the earliest on 12 July 2002, the date of the first declaration by the State having the effect of binding it legally vis-à-vis France Télécom and its creditors, and ends at the latest on 4 and 5 December 2002, the dates on which the Ambition 2005 plan was made public and the EUR 9 billion credit line was opened. It argues that the reasonable return which a prudent private investor would have been entitled to expect in such circumstances cannot be reliably calculated. Thus, the recapitalisation of France Télécom cannot be compared to any other financial transaction in view of the scale of the liquidity crisis faced by the Company. As a result, the State was unable to assess its risk by making a probability calculation and was confronted with a radical uncertainty (that is to say, a non-probabilisable risk) when it decided to guarantee France Télécom: thus, both the level of risk and the return were not quantifiable. At all events, the investment could not be characterised as reasonable. In particular, a projection of France Télécom's stock-exchange valuation and of the return on investment expected by a private investor shows that the investment is unreasonable. In accordance with the method used by the Commission to assess the prudent nature of an investment, the return on investment which a prudent investor would have demanded, bearing in mind in particular the risks connected with the transaction, may be estimated at at least 30-40 %. This rate is the minimum required by the Commission in the Alitalia (69) and Iberia cases (70). According, however, to the methods used by Bouygues Telecom, that is to say, EPS (Enterprise value or Analysts target price 12 months), the return on investment in the transaction at issue is only 16 %. Nor can the State count on a remuneration in terms of dividends as France Télécom has announced that it will not be distributing any. Generally speaking, it is not appropriate to make an ex post analysis of France Télécom's positive results in the assessment of the prudent investor test. A private investor would never have committed himself financially without entering the slightest reservation at a time when the total amount of the France Télécom group's debts had not been established. Bouygues Telecom adds in this regard that, in accordance with the case law of the Court of Justice of the European Communities, it cannot be maintained that the commitments entered into by the State towards France Télécom are a reflection of the conduct of a prudent investor solely on the ground that France Télécom had become a profitable company.
-
Difference between the situation of a private investor and that of the State: Bouygues Telecom argues that, in view of the prolonged crisis in the world economy and more particularly in a telecommunications sector undergoing transition, and bearing in mind the size of the sum in question, no private investor could have envisaged a capital increase of that amount without conditions and only a State of the creditworthiness of France could have coped with such uncertainty. It thus points out that the financing of the strengthening of the Company's capital base, covered entirely by debt without any own funds, would have affected the credit rating of any private investor who behaved in a similar way, whereas a State, on the other hand, can be punished only by its electors, who do not have the same objectives. The creditors and shareholders of the private investor would have asked for the investment to be backed by a business plan containing precise commitments, including the disposal of assets. Bouygues Telecom concludes that, at all events, a prudent investor whose financial capacity was comparable to that of the French State and who issued such a guarantee would not have inspired much confidence in the markets and that it is clear that it was due to the qualification of ‘sovereign debt’ enjoyed by the State's commitments that confidence was restored.
-
Concomitance criterion: Bouygues Telecom argues that the concomitance principle has not been complied with. The French authorities' decision to invest dates from 12 July 2002 and France Télécom's financial difficulties on that date by themselves point to the recapitalisation being state aid, all the more so as the State took its investment decision in ignorance of the Company's exact economic and financial situation and prior to the drawing-up of the financing plan. Bouygues Telecom points out that the participation of private investors was neither certain nor significant at the time of the announcement by the Government of its participation in the capital increase, even if the analysis of the date of taking of the decision to invest is brought forward to 5 December. According to the case law of the Court of Justice, where private investors are prepared to intervene only after the authorities have decided to grant aid, the fact that those investors are then prepared to intervene at the same time is no longer relevant. Such an intervention is the consequence of the support given by the State and not the result of a decision of a private investor. Hence, in the present case, the fact that a banking syndicate undertook to underwrite the transaction cannot be taken as a basis for concluding that the concomitance principle is complied with. The French authorities' decision to invest is firm and unconditional whereas that of the private investors is not, and the private investors made their contribution only after having received, on a number of occasions and with certainty, the assurance that the State would also participate in the transaction and especially that it would take every step to ensure that France Télécom did not have any financing problems. At all events, Bouygues Telecom takes the view that, in accordance with the case law relating to the Seleco decision referred to in paragraph 80, a significant participation by private investors is not in itself sufficient to rule out any aid element. It maintains, moreover, that the State's investment is higher than the amount of its participation in France Télécom's capital. It argues, lastly, that the very high level of banking commissions allows the bank to subscribe to the underwritten shares at a lower discount than that offered to the public.
(87)
As regards the effect on competition, Bouygues Telecom points out inter alia that the measures at issue have had the effect of affecting competition in the market for mobile telecommunications. In substance, it refers to the fact that the scale of France Télécom's debt can be traced back to the development of the mobile telecommunications business. Thus, Orange does not bear the debt linked to its acquisitions; instead, the parent company bears it in its entirety. Being endowed with the means of coping with its debt thanks to the measures at issue, France Télécom enables Orange to consolidate and develop its position in the mobile telecommunications markets. With a 49,8 % market share, Orange is in a dominant position in the French mobile telephony market. In its comments of 11 April 2003, Bouygues Telecom points out that the structure of the mobile telecommunications market in France is due to a capitalistic investment strategy (together with an aggressive commercial strategy) carried on by Orange to the detriment of its operational profitability, thanks to the support granted to it by the State through France Télécom, notably via the aid at issue in the present case. It stresses, moreover, that the measures at issue affect competition throughout the telecommunications market and dissuade foreign operators from coming to propose their services in France. France is thus the only European country in which no ‘foreign’ mobile operator has been able to establish itself.
(88)
As to the compatibility of the support measures within the meaning of the Guidelines, Bouygues Telecom argues that they do not possess the exceptional character required in order to be characterised as rescue aid within the meaning of the Guidelines. Basically, the fact is that the Ambition 2005 plan does not satisfy the minimum requirements of the Guidelines. The plan contains measures not forming part of a rescue operation, such as recourse to the bond market or the envisaged recapitalisation. Among other things, the amount of the recapitalisation is more than is needed to cover France Télécom's short-term operating needs alone, excluding reimbursement of the loans taken out at the time of its expansion. Moreover, the plan is not a restructuring plan capable of modifying the structure of France Télécom with a view to improving its profitability, but is limited to increasing the Company's liquidity so as to lessen the impact of its current difficulties. Bouygues Telecom insists also on the fact that the measures at issue are weak in comparison with those taken by the historical operator's competitors, such as KPN, Deutsche Telekom or British Telecom, both as regards the disposal of assets and as regards the social measures taken.
(89)
The restructuring plan does not contain any substantial compensatory measures capable of preventing any undue distortions of competition so as to offset the aid granted by the State. Bouygues Telecom notes among other things the lack of any disposal of valuable or strategic assets. Thus, the sales envisaged by France Télécom are limited to non-strategic assets worth very little (EUR 3,5 billion, according to France Télécom's own estimates).
(90)
Additionally, Bouygues Telecom maintains that compensatory measures must be adopted for the benefit of the historical operator's competitors in the mobile telecommunications market, and in particular for the benefit of the last entrant, the presence of whom is a precondition for the existence of genuine competition in the French market. It proposes inter alia as compensatory measures within the meaning of the Guidelines a five-year ban on Orange proposing lower rates than its competitors for equivalent services, and the imposition of a self-limitation on Orange's monthly market shares to 33 % until such time as Orange's net market share is reduced to 40 %. It also proposes a limitation of the length of the commitments entered into by consumers vis-à-vis Orange to 12 months (acquisition and renewal), a freezing of the deployment of Orange's GSM and GPRS network so as to re-establish a competitive balance, the obligation to dispose of strategic assets and the obligation to limit marketing activities.
(91)
In its comments of 26 May 2004, Bouygues Telecom furnishes inter alia an economic analysis which states that, in view of the specific attitude of States (variable according to their own credibility), the support of the State has a substantially different scope from that of a majority shareholder. The analysis also points out that state intervention is part of a long tradition and that that intervention is judged on the basis of an already established reputation. In Bouygues Telecom's view, it is clear that, by supporting France Télécom, the State is staking its reputation and hence is placing on the line its ability to intervene again in favour of other French companies. The analysis also stresses that the question of the French State's credibility is to be seen in the context of the specific French situation with regard to privatisation. Any flagging in its support would have deprived the State of its capacity to act subsequently, which was speedily done in the case of Alstom.
(92)
Bouygues Telecom also furnishes an analysis of whether the State's declarations had any binding effect under the law of the state of New York, where the Company is also quoted. According to that analysis, it is probable that such declarations would be considered binding either as a unilateral contract or by virtue of the principle of estoppel.
(93)
Bouygues Telecom furnishes, lastly, a study of whether such declarations emanating from the British Government would have a binding character under English law. The conclusion of that study is that such declarations would be binding or would impose on the State the burden of justifying a change of position.
4.6. Comments from Cable & Wireless
(94)
Cable & Wireless expresses the view that the measures at issue constitute state aid. The market's confidence following the announcement of the granting by the French authorities of the shareholder loan sufficed to confer an advantage on France Télécom. In so far as a prudent private investor would not have taken the decision to recapitalise a company such as France Télécom, which was clearly inefficient prior to the adoption of the 2005 Ambition Plan, the Company enjoyed an advantage which it would not have secured under normal market conditions. Cable & Wireless also points to the dangerous precedent that would be created by allowing a government to underwrite all the financial problems of public undertakings and to the negative dynamic that would be created for competition. It adds that the measures cannot be considered compatible within the meaning of the Guidelines. Inasmuch as the Company is not in financial difficulties, the Guidelines are not applicable.
4.7. Comments from AFORS Télécom
(95)
AFORS Télécom (Association française des Opérateurs de Réseaux et Services de Télécommunications) observes that the measures at issue constitute state aid. More particularly, it states as follows:
(96)
Through a series of step-by-step decisions taken in the course of 2002 - including the State opting for payment of the 2002 dividends in shares and not in cash - until the opening of a EUR 9 billion credit line made available to France Télécom via ERAP, the French authorities restored investors' confidence by giving formal status to their support. Moreover, even if the credit line opened by ERAP were never used by France Télécom, it symbolises the guarantee of state support and hence mobilises state resources within the meaning of Article 87(1) of the Treaty.
(97)
The terms on which the credit line was granted and the terms governing its remuneration do not satisfy the tests of the prudent private investor principle. AFORS Télécom argues that France Télécom's financial failings since 2000 could not have happened in the presence of a prudent investor. The State thus did not perform its role of ‘watchdog’ and it allowed France Télécom to increase its indebtedness on an unheard-of scale. AFORS Télécom observes that France Télécom's past acquisitions strategy was conducted without regard to the inherent risks inasmuch as the State in its capacity as shareholder assured France Télécom of its support against any prospect of bankruptcy.
(98)
The State's support has had the effect of preventing any further downgrading of France Télécom's credit rating by the rating agencies, which has made it possible to speed up France Télécom's return to the market and the refinancing of its debt under less onerous financial conditions. France Télécom has enjoyed an advantage which AFORS Télécom estimates is worth EUR 1,5 billion (71). Hence, it is the credibility of the French State, enjoying as it does excellent creditworthiness, and not that of the restructuring plan, that determined the conditions of France Télécom's return to the financial markets. Moreover, the State's support had the advantage that France Télécom no longer had to modify its strategic perimeter.
(99)
The Ambition 2005 plan consists of guidelines and not of clearly worded, binding and irreversible commitments and cannot be compared to the restructuring process implemented in Europe by, say, British Telecom.
(100)
The advantages enjoyed by France Télécom prolong distortions of competition damaging to the members of AFORS Télécom. In AFORS Télécom's opinion, the aid granted by the French State reinforces the already existing anticompetitive practices which are highly detrimental to alternative operators. AFORS Télécom mentions among other things the exclusive utilisation of France Télécom's distribution network by Orange and Wanadoo, the unbundling offers which systematically benefit Wanadoo and France Télécom, and the monopoly position held by France Télécom in the market for shared-revenue services (the supplying to consumers of value-added content accessible by telephone). AFORS Télécom points to the real risk of prolongation of this conduct which the state aid would allow.
(101)
Compensatory measures should be imposed on France Télécom with a view, firstly, to ensuring that the conduct of the State is analogous to that of a company which has to restore its financial capacity without benefiting from exceptional aid and, secondly, to restoring fair competition. This would involve (i) restricting France Télécom's investment to that of an indebted company, e.g. by limiting its overall investment policy to investments the return on investment period of which is less than 12 months in the case of retail activities; (ii) introducing transparent structures between each business within the group; and (iii) preventing the state aid from being used to fuel a price war, for example through the systematic publication of its tailor-made retail offerings.
4.8. Comments from Cégétel
(102)
Cégétel maintains that there are two separate measures: (i) the announcement by the French authorities of the granting of a shareholder loan to France Télécom; and (ii) the participation by the State in the recapitalisation of France Télécom.
(103)
As regards the first measure, Cégétel remarks first of all that the situation of a company with a private reference shareholder and that of a company with a public majority shareholder are not comparable. A similar announcement made by a private shareholder would have been received with the greatest circumspection by the rating agencies and would have caused them to take a close look at the arrangements for the refinancing by the shareholder in question of the credit line thus extended. Cégétel concludes from this that the mere fact of being backed by the State confers a considerable advantage vis-à-vis investors and prevented any further downgrading of France Télécom's credit rating by the rating agencies despite the fact that the operator appeared to be in an insoluble situation. It maintains that the Commission may justifiably consider that the French State granted aid to France Télécom even before an agreement for the granting of a EUR 9 billion credit line was signed as the announcement of support was sufficient to render this emergency financing unnecessary. Lenders were thus certain that France Télécom could never default on its payments inasmuch as the State would always be ready to grant it the funds it needed to honour its commitments, and this enabled France Télécom to obtain financing directly on the market. Cégétel concludes on this point that the government declarations were worded in such a way that the markets would be certain that lending money to France Télécom would be strictly equivalent to lending money directly to the State. France Télécom thus enjoyed advantages which it would not have secured under normal market conditions, compared, for example, with the situation of Vivendi Universal. The recourse to the bond market enabled it to avoid having to resort exclusively to financial institutions in order to cope with its liquidity crisis and suffering all the constraints linked to that type of financing. Cégétel maintains that the terms of grant of the credit line by the French authorities are not in keeping with those granted by a prudent investor in relation to one of his participations. More particularly, a prudent investor would never have agreed to the policy of financing acquisitions through debt which placed France Télécom in a critical financial situation such that the State had to carry out a recapitalisation. Cégétel refers to the Crédit Lyonnais II decision, in which the Commission finds that the aid measures could not be justified by the failings over many years of the State as shareholder (72). In Cégétel's opinion, opting to channel the aid through ERAP is not what a prudent investor would have done. In this connection, Cégétel notes in particular the interest rate applicable to the drawings on the loan and the absence of securities and guarantees. Regarding quantification of the aid relating to the shareholder loan, Cégétel maintains that point 3.2, fourth subparagraph, of the Notice on state aid in the form of guarantees is applicable and that, in view of the fact that, thanks to state support, France Télécom has been able to borrow EUR 16 billion to meet its maturities despite the catastrophic nature of its finances, the amount of the aid is equivalent to the amount raised thanks to the announcement.
(104)
Cégétel maintains that the same reasoning applies to the recapitalisation, which it analyses, from an economic point of view, as being the transfer of EUR 9,2 billion of France Télécom's debt to ERAP, which benefits from the State's guarantee. Cégétel counts the whole of this amount as aid. It also highlights the amount of the aid corresponding to the redundancy costs which a company would have had to bear in terms of staff cuts, namely EUR 1,5 billion, and which the historical operator would not bear owing to its employees being transferred to civil service jobs under the Ambition 2005 plan.
(105)
Cégétel maintains that France Télécom benefits from a formal guarantee in so far as the Court of Cassation considers that private-law companies enjoying special legal status are not subject to the applicable judicial liquidation procedures (cf., for example, SEITA or Air France). Thus, by virtue of this case law, France Télécom must be regarded as not falling within the ambit of the ordinary-law arrangements. Cégétel acknowledges that France Télécom has not enjoyed EPIC status since 1996, but points out that, in reality, the guarantee has not disappeared inasmuch as the state authorities have sought, through their repeated declarations, to convince the markets that France Télécom would retain, come what may, the support of its reference shareholder and that, if necessary, the State would help the operator to meet its maturities (73).
(106)
Cégétel maintains, lastly, that the measures cannot be considered compatible within the meaning of the Guidelines. It recalls that, according to the Guidelines, where a State injects capital into a firm in difficulty, ‘it must be deemed likely that the financial transfers involve state aid’ (74). It argues that the compensatory measures taken by France Télécom cannot be considered sufficient within the meaning of the Guidelines. Thus, the Ambition 2005 plan does not contain any specific provisions on asset disposals or a social plan. Cégétel proposes inter alia the following compensatory measures in the fixed telecommunications market: (i) the sale of local loop access and associated services; and (ii) increased ring-fencing between France Télécom and the companies Orange and Wanadoo.
4.9. Comments from LDCOM (75)
(107)
LDCOM identifies a dual mechanism of aid in support of France Télécom, backed by support for staff mobility, namely: (i) the provision of an unlimited guarantee; and (ii) the granting of a EUR 9 billion credit line.
(108)
Provision of the unlimited guarantee: LDCOM bases its considerations on the content of the declarations by the French authorities which have appeared since 20 June 2002 in the press via press releases of the Ministry of Economic Affairs and Finance addressed directly or indirectly to the rating agencies. These declarations, which seek to reassure the financial markets about France Télécom's situation (76), have contributed directly to the improvement in France Télécom's credit rating in the markets and have helped the Company to face up to the liquidity wall with which it was confronted. According to LDCOM, the State's intervention by may be characterised from a legal standpoint in a number of ways. It points out that, under French law, no form is required for the creation of a legal obligation and that an oral declaration may therefore, under certain conditions, constitute a legal act giving rise to a right on the part of its addressee. The binding force of the unilateral act is based on the theory of commitment by unilateral will, which is one of the sources of the law of obligations. This obligation arises from the dual condition of the firm and precise nature of the will. LDCOM also affirms that the State's responsibility is based, in company law, on the analysis of the theory of the apparent mandate and of the de facto manager - in the latter instance for having directly contacted the rating agencies. Under international law, the State's contractual responsibility is also incurred in so far as a unilateral legal act has binding force where it can be shown that the declaration was expressed publicly with the intention of binding its author (77). Thus, a mere oral and public declaration made by a State may create a legal obligation on its part. In the present case, according to LDCOM, the content of the declarations binds the French authorities as the letter of the declarations constitutes a clear and unequivocal unilateral commitment by the State to be the lender of last resort to France Télécom and not to leave the latter in the financial crisis it has known since the summer of 2002. Inasmuch as the State's commitment is of a binding nature, any failure to honour that commitment may incur the State's contractual responsibility (third parties could have forced the State to carry out its commitment).
(109)
LDCOM asserts that the State's tortious liability was also incurred, notably under company law. Thus, a company which gives the impression of taking over the debts of another company gives rise to a claim on itself by third parties. According to LDCOM, the State, by its declarations, guaranteed third parties that it would take over France Télécom's maturing debt. More precisely, LDCOM maintains that the State's declarations to the effect that it ‘will contribute to the very substantial strengthening of the company's capital base (78)’ give rise to an obligation on its part incurring its legal and financial responsibility (79). According to learned opinion: ‘if the State did not respect the commitment thus entered into, its responsibility would incontestably be incurred before the administrative courts, the forum for hearing cases involving promises not kept by the State’ (80). LDCOM states that Article L465-1, third subparagraph, of the Monetary and Financial Code provides for the punishment of persons who distort the normal functioning of markets by illicit actions which influence the trend of stock prices. Consequently, according to LDCOM, it is clearly established that the State did not at all intend to announce hypothetical future events but was in fact announcing its future line of conduct.
(110)
In LDCOM's opinion, Community case law also confirms that any press article, emanating either from the company concerned or from the Government, which is of an unconditional nature necessarily indicates that state resources are being made available (81). In the present case, the declarations emanate directly from the Government and are of an unconditional nature.
(111)
It follows from the above that the legally and financially binding declarations of support made by the French authorities on and after 2 June 2002 are akin to a guarantee the purpose of which is to enable France Télécom to avoid bankruptcy and to survive within its existing business perimeter. In LDCOM's opinion, the guarantee is an unlimited one. LDCOM states that it is therefore not only the provision of a credit line and the amount thus granted but the very announcement of that provision which constitutes the aid. In accordance with the Notice on state aid in the form of guarantees, the criterion relating to state resources is fulfilled, whether or not the guarantee is called. Considering that the measures at issue did not satisfy the criteria of the said Notice, on the grounds that France Télécom could not then find the necessary funds on the markets, LDCOM observes that the measures constitute aid. LDCOM also argues that ‘in view of the amounts involved, the State alone was capable of providing such a guarantee, no prudent investor being able to ensure the credibility vis-à-vis the markets of the “taking in hand” of France Télécom’ (82). Lastly, LDCOM stresses that any analysis to the contrary would be fraught with consequences inasmuch as not only would it run counter to the principles of domestic positive law but it would also open up the possibility for Member States to sustain with impunity the share price of companies in which they have an interest (83).
(112)
The effect of this unlimited guarantee is clearly felt in the market and the market's reaction corresponds to the value investors actually place on the guarantee. Thus, the stock exchange price of France Télécom's shares rose as from July 2002, leading to an increase in the operator's stock exchange value. LDCOM argues that the increase in value thus brought about by the State's announcement may be put at EUR 5,9 billion. Similarly, France Télécom's spreads (84) started to improve as from July 2002, thereby reducing the operator's financial burden and permitting the rebuilding of its financial capacity. These spreads make it possible to evaluate in concrete terms the financial weight of the State's announcement. They must be related to France Télécom's entire debt financed through bond issues. Depending on the circumstances, they vary from 2 % to 3 %, equal to an annual saving of between EUR 1,37 billion and EUR 2,05 billion. Assuming that France Télécom will maintain a constant level of indebtedness and hence that the debt will be financed indefinitely, LDCOM evaluates the impact of the saving thus made at between EUR 19,57 billion and EUR 29,36 billion. Moreover, the State's support has enabled France Télécom to refinance itself on the bond markets on more advantageous terms than it would have obtained beforehand.
(113)
Announcement of the making available of a EUR 9 billion credit line: LDCOM does not analyse this measure in the light of Article 87(1) of the Treaty, but refers to the analysis carried out by the Commission in its opening decision, insisting on the part played by ERAP.
(114)
In LDCOM's opinion, both from the point of view of its amount and of that of its modalities or its very objective, the State's support is not covered by the prudent investor criterion. Thus, no prudent investor would, in September 2002 (when the State announced that it would be supporting France Télécom financially), have advanced EUR 9 billion under such economic circumstances without basing itself on a restructuring plan. LDCOM explains, moreover, that no private investor would have had the financial capacity to mobilise such amounts in such a short space of time. It also states that, for a private investor, maintaining the integrity of a group's operational structure is a means to the end of earning a return on his investment. In the present case, for the French authorities it is an end in itself. It is understandable that the State should bear social and political considerations in mind, but such a move would violate the principle of equality between public and private sectors.
(115)
In LDCOM's opinion, the State's position that a prudent majority investor would not have called into question France Télécom's functional integrity does not stand up to an analysis of the conduct of such an investor under the market conditions prevailing in June-July 2002. Thus, investors who invest an extremely large proportion of their assets in a company threatened with collapse will be the first to demand a radical and immediate review of its strategy, involving, if necessary, a huge sell-off of strategic assets. The relevance of this analysis can be verified by comparing the situation in which France Télécom would have found itself without the State's support with that of Vivendi Universal, which was obliged, under pressure from the markets, to revise its range of assets. LDCOM thus maintains that the Commission must not only refuse to take as point of departure the maintenance of the group's functional integrity, but also analyse the impact of such maintenance as being the veritable effect on competition. It argues that, in July 2002, without any state intervention, France Télécom would have had no choice but to reduce its range of assets, enforce redundancies (85) and revise its strategic objectives.
(116)
LDCOM puts the total amount of aid at EUR 15 billion, this being the sum which France Télécom succeeded in raising on the financial markets thanks to the aid granted to it by the State. The aid amount cannot therefore be limited to the EUR 9 billion provided directly by the State, since it was through various state measures (unlimited guarantee, shareholder loan, staff movements) that France Télécom was able to increase its capital by such an amount.
(117)
In LDCOM's opinion, the aid granted by the State constitutes restructuring aid. LDCOM has carried out a comparison between the situation before and after the public intervention in the markets for voice telephony, high-speed Internet access and low-speed Internet access, and that which would have obtained in the absence of any public intervention. This comparison confirms that the aid has had the effect of maintaining the status quo ante in the run-up to 2005 (intact operational and marketing capacities), which makes it possible by deduction to quantify in terms of market shares some of the effects of the public intervention. LDCOM proposes that remedies should be imposed on France Télécom under point 35 of the Guidelines, the effect of which will have to be to restore the market situation to what it would have been had France Télécom been forced to modify its business perimeter spontaneously. In so far as the State has, in LDCOM's view, set itself the primary objective of maintaining France Télécom as an integrated telecommunications operator, the main markets affected are that for mobile telephony and that for fixed telephony, both upstream (interconnection, DSL access) and downstream (retailing of communications, DSL Internet access, etc.). LDCOM proposes therefore that the Commission should take behavioural measures to limit the distortion of competition thus brought about and to enable alternative operators to work under the conditions which they would have enjoyed in the absence of aid. It proposes, therefore, a reduction in the market shares of France Télécom and its subsidiaries in the high-speed Internet market (maximum of 42 % of the market for the sale of high-speed Internet access by DSL, in terms of value) and in the voice telecommunications market (maximum of 55 % of the local and national voice communications market, in terms of value) and a series of measures aimed at implementing the limitation in France Télécom's market shares (86). The second category of measures proposed by LDCOM consists of the imposition of measures aimed at enabling the development of competitors (87).
(118)
In its comments of 17 May 2004, LDCOM states that the declarations by the Minister for Economic Affairs and Finance constituted a unilateral state act non-compliance with which was punishable under international law. It also states that the prohibition on a person denying a fact to the detriment of another person (estoppel) is a general principle of international commercial law which is binding on the State. It points out in this connection that the principle's applicability in the present case is incontestable in view of the fact that the French State is acting as a shareholder and hence also as an operator in international trade.
(119)
LDCOM also stresses that the State cannot go back on its declarations without harming its own financial credibility. In its intervention on the market, the State plays a role of borrower and a role of majority shareholder in a number of companies. This dual role leads to a dual credit rating by the rating agencies, in its capacity as borrower and in its capacity as shareholder through the ratings given to public undertakings. This twofold intervention possibility calls for particular vigilance as any deficiency established in either of these two roles is likely to have consequences for its other role and for its rating (LDCOM refers to Moody's assessment of public undertakings). LDCOM further stresses the fact that the credibility of the State is fundamentally different from that of other enterprises in a similar situation which cannot reassure the market (as in the case of Vivendi Universal). The security which, for the financial markets, French public borrowings represent is therefore the justification for the unconditional confidence placed by investors in the State's declarations, the State having always respected its commitments. The taking into account of the support given by the State following its entering into direct contact with the rating agencies, the role of which is be extremely critical as regards the risk inherent in a financial investment, highlights the credibility of the State's support for France Télécom. LDCOM also points out that the State's rating attains the top mark of Aaa as it honours its commitments. A disengagement by the State would lead to a fall in its rating, which would result in a re-evaluation of public debt interest. Likewise, a disengagement from one public undertaking might have an impact on the credit rating of all the others.
4.10. Comments from B
(120)
In B's opinion, the making available of funds, coupled with the public commitment by the State to support France Télécom, is comparable to the providing of a financial guarantee capable of reassuring not only the Company's creditors but also the entire market, which has helped to improve France Télécom's situation vis-à-vis the stock markets. Hence, B concludes, the measure at issue has been granted through state resources. Given that the State's conduct cannot be considered to be that of a private investor in a market economy, the Company enjoyed an advantage which it would not have obtained under normal market conditions. Thus, at the time of opening of the credit line, France Télécom's financial situation was such that no prudent investor would have carried out a transaction of this type. Likewise, B maintains that the concomitance principle has not been complied with, the participation of private investors having been made possible only by the announcement and making available of a shareholder loan the amount of which was so huge that no private investor would have been able to mobilise so much money. It points out that the support measures reassured private investors that any risk of France Télécom's becoming bankrupt could be ruled out. It also argues that the amount of France Télécom's recapitalisation (between 80 and 100 % of its stock exchange valuation) is such that, in the light of France Télécom's economic situation, no private investor would have carried out such a transaction were it not for the declarations of support and the prefinancing measures taken by the Government.
(121)
B maintains that the measures cannot be considered compatible within the meaning of the Guidelines. In the alternative, it proposes compensatory measures, inter alia in the market for fixed telephony, in the market for Internet access and in the market for mobile telephony. It points to the various effects on the development of competition in the French market (88). In the fixed telephony market, it advocates, among other things, accounting separation and the creation of a genuine management system for France Télécom's network activities so as to prevent the pursuit of anticompetitive practices. It also proposes the imposition on France Télécom of an obligation to inform fixed telephony subscribers about the possibility for them to choose their operator for the routing of their telephone calls so as to attenuate the ‘tremendous “competitive leverage” afforded it by its virtual monopoly in the market for access to the telephone network and in the markets for the routing of telephone communications’. In the mobile telephony market, B proposes inter alia the imposition on Orange of an obligation to make a MVNO (Mobile Virtual Network Operator) offer to operators wishing to penetrate this market.
4.11. Comments from Tiscalinet
(122)
Tiscalinet argues that the declarations made by the State as from 2 July 2002 signal to the market that any compulsory administration of France Télécom is ruled out. At the same time, the State's option for its 2002 dividends to be paid in shares and not in cash is another signal by the State to the market that it supports France Télécom even though a prudent investor would have opted for payment of the dividends in cash. Tiscalinet adds that the approaches made by the Minister for Economic Affairs and Finance to the Caisse des Dépôts et Consignations, which holds 5 % of the historical operator's capital, to induce it to block the securities to make them less volatile and strengthen investor confidence raises the question as to what private investor would have acted in that way. Tiscalinet also stresses that the set of legislative measures aimed at extending ERAP's company objects so as to enable it to hold France Télécom shares (89), the provision of a state guarantee to ERAP to enable it to invest in France Télécom (90) and the instrument dealing with the method by which the State would hold France Télécom's capital strengthen the analysis of the irrevocable character of the state guarantee on which market operators, and in particular bond holders, relied when subscribing to the successive calls made by France Télécom. These factors bear out that the State is acting as a ‘last resort’ vis-à-vis France Télécom, a transaction to which a prudent investor would not have subscribed. In Tiscalinet's opinion, only the French State was capable of mobilising such resources.
(123)
Tiscalinet maintains that the guarantee given by the State and the subscription to the capital increase which no prudent private investor would have made enabled France Télécom to avoid having to carry out huge asset disposals with the sole aim of maintaining its business perimeter and of benefiting from relatively low bond rates compared with its intrinsic financial situation.
(124)
The aid is incompatible with the Guidelines. Tiscalinet maintains that the conditions for the granting of restructuring aid are not met, inter alia because the Ambition 2005 plan does not contain sufficient compensatory measures to safeguard competition. It refers to the distortions of competition brought about by the French State's support in the case of the high-speed Internet access market. It maintains that France Télécom is able to invest heavily in certain aspects of the network, using advertising monies, which benefits Wanadoo. Moreover, Wanadoo has not had to dispose of major assets and continues to benefit from Yellow Pages income and from France Télécom's commercial agency network. Tiscalinet also points out that the strategy introduced by France Télécom, notably as regards the launch of the simplified mixed public purchase and exchange offer concerning Wanadoo's shares of 11 March 2004, had the effect of enabling France Télécom to benefit from fiscal aid which it would not have received without the State's support measures. Tiscali draws attention, moreover, in its letter of 5 April 2004 to the anticompetitive strategy introduced in the DSL market in France thanks to the initial aid from the French State.
(125)
In the alternative, if the aid were to be found compatible with the Guidelines, Tiscalinet proposes compensatory measures essentially in the high-speed Internet access market, such as the setting of a minimum price for France Télécom's ADSL retail offerings to its subsidiaries, a ban on making joint offers of France Télécom's and Wanadoo's services, a ban on distributing Wanadoo's services in France Télécom's commercial agencies, and the disposal of the Yellow Pages business and of Wanadoo's foreign subsidiaries.
4.12. Comments from D
(126)
D has submitted a document entitled ‘Stage report on the fulfilment of President Jacques Chirac's campaign commitments in the fields of industry, energy, telecommunications and posts of June 2003’. On the subject of France Télécom, the document states that: ‘Thanks to the State's resolute support and to the appointment of Thierry Breton, France Télécom has been more than just saved from a life-threatening situation.’
4.13. Comments from France Télécom
(127)
France Télécom has presented its comments in the form of three reports: (i) a report drawn up by Mr Ehlermann dated 12 January 2004 entitled ‘Opinion for the attention of France Télécom’; (ii) a report drawn up by Mr Galmot dated 6 January 2004 entitled ‘Does the case law of the Court of Justice of the Communities allow the conclusion to be drawn that the “financial measures introduced by the State in support of France Télécom”, regarding which the Commission has initiated the procedure provided for in Article 88(2) of the Treaty, have effected a “transfer of state resources” for the benefit of that company?’; and (iii) a report by HSBC entitled: ‘HSBC Opinion of 6 January 2004’. These three reports are described briefly below.
(128)
The first report analyses the French authorities' conduct in the light of the rules applicable to state aid in general and of the prudent investor test in particular. The arguments set out in the report, which seeks to show that the declaration of 5 December 2002 concerning the shareholder loan does not affect the State's resources, are essentially as follows: (i) the December 2002 announcement of the shareholder loan is not an irrevocable commitment (but a mere declaration of intent), and is conditional. The announcement does not therefore constitute a guarantee, and even less so an unlimited guarantee; (ii) the Crédit Foncier de France decision (referred to above) is not a valid precedent and, moreover, it concerns a declaration that is not comparable to the December 2002 announcement. The report also seeks to show that France Télécom was not a company in financial difficulties within the meaning of the Guidelines at the time the State decided to take part in the recapitalisation and announced its readiness to provide a shareholder loan. It stresses that it is normal and usual for the majority shareholder to grant a loan upfront of its participation in the recapitalisation.
(129)
The second report focuses on whether the mere announcement of the making available of a shareholder loan in the form of a credit line can as such constitute a commitment of state resources. The report states that, according to the Commission's argument, an irrevocable announcement of a commitment to grant a loan, coupled with its apparent provision, is sufficient to establish a commitment of state resources, which corresponds to the concept of measure having an effect equivalent to state aid, which has already been rejected by the Court of Justice. According to the report, there is no transfer of state resources because, in the end, there was no opening of a credit line or provision of a guarantee, which would have required authorisation by a finance act. There is likewise no transfer of state resources because, under French law, no oral declaration by a public authority is capable of having any effect whatever on the public finances and of carrying out the slightest transfer of state resources. And in the present case, all that is involved is mere ministerial declarations having no negative impact on the public finances.
(130)
The third report focuses on the economic rationale behind the State's conduct between 4 September 2002 (the announcement of the first six months' results) and 15 April 2003 (the carrying out of the capital increase). The report is based on an analysis of France Télécom's situation in September 2002 and draws a distinction between, on the one hand, France Télécom's operational performance (healthy activities with a potential for improving the operational cash flow) and, on the other, the amount of the operator's debt (level of indebtedness, debt maturities, negative consolidated own capital resulting from losses linked to non-recurring items). The report concludes on this point that the time lag between the generation of the group's cash flow and the heavy short-term financial commitments (2003-2005) poses a problem of refinancing but not of solvency.
(131)
HSBC also describes the background to the short-term liquidity crisis, worsened as it was by a crisis of confidence on the part of the market vis-à-vis the group. It states that, in a situation such as that, reason demanded that urgent steps be taken and required the introduction of a plan to improve the operational results, an increase in capital, a rescheduling of debt and a targeted policy of disposing of assets. It argues that, in the present case, the Ambition 2005 plan is a complete and rational coherent plan as it permits among other things the generation of a EUR 15 billion cash flow via an operational improvement and a disposal of assets that does not involve any amputation of core businesses. It stresses that a capital increase in support of a company introducing an operational recovery plan is a natural way of rebalancing the accounts. It points out that the oral support of a majority shareholder is also usual and rational and that it is normal practice for reference shareholders to announce their decision before other shareholders do. It also points out that in this case the shareholder loan was a low-risk, profitable and normal transaction - pending a capital increase - aimed at safeguarding the majority shareholder's financial interests at a time (the month of December) when it was not possible to recapitalise the company for reasons of scheduling. It adds that the loan was to be made on market conditions.
(132)
The HSBC report mentions also the trend in the price of France Télécom shares on the stock exchange, pointing out that the shares had risen in July 2002 as a result of rumours of nationalisation, only to fall again in September because, although the market had got wind of a possible EUR 15 billion capital increase, the practical arrangements were not as yet clear. It points out that France Télécom's financial projections presage, for the State, a highly satisfactory return: according to the DCF - discounted cash flow - method, the recapitalisation involves an annual rate of return of 25 %, whereas the average rate on the telecommunications market is 9,9 %.
(133)
In response to the dispatch of the consultant's legal report and economic report, France Télécom submitted three legal memoranda criticising the reports' content and an economic report (91).
(134)
The first memorandum states that the various legal categories under French civil, commercial or administrative law used by the consultant in its analysis of the State's declarations are not relevant to any finding that the ministerial declarations may be capable of creating rights on the part of third parties. More particularly, the memorandum claims that the conditions required for the State's responsibility to be incurred for non-compliance with its promise are not met in the present case. It argues that in no way does the mere act of making a promise, even to pay certain sums of money, suffice in itself to commit public finances, to ‘immobilise state resources’, without a legal instrument. It concludes on this point that there is nothing in French case law to show that there has been a ‘transfer of state resources’ in the present case due to the conditional promise of a shareholder loan. It adds that there must be a link between the state resources and the advantage granted. Litigation over promises made is designed solely to compensate for any loss suffered by the promise's recipient. The compensation due cannot therefore procure for the latter an advantage.
(135)
The memorandum concludes by saying that the Court of Justice has not defined the extent to which an unconditional and legally binding promise to grant aid can be considered as ‘having been implemented’.
(136)
The second memorandum states that the Commission should formally extend the procedure to include the measures analysed by the experts appointed by it as they were not covered by the opening decision. It adds that ‘unilateral declarations made by a state authority, acting in its role of majority shareholder, must, under French law and under Community law, fulfil various criteria in order to be able to be characterised as an irrevocable, clear and unconditional commitment and in order to be able to be characterised as state aid’. The memorandum concludes on this point that the various declarations on which the experts have focused manifestly do not satisfy these conditions. According to Mr Ehlermann, the analysis put forward by the experts would have as a corollary ‘a muzzling effect on any state authority which, where it is the majority shareholder in a company, is required to inform the Commission in advance of any public declaration concerning its shares, intentions or opinions as majority shareholder within or in favour of the company it controls’. The experts' analysis would also lead to ‘an unfounded enrichment of that same authority which, as a result of non-compliance with an obligation of silence, would benefit from an order to recover funds which it has never mobilised. The State would thus be rewarded - by the company, which is not master of its shareholders' declarations - for having violated this alleged “obligation of silence”. The calculation of the aid as carried out by the experts is vitiated, not only by material errors and deficiencies on the economic side as mentioned by HSBC, but also by fundamental errors of law which render it invalid and unusable by the Commission.’ The memorandum's author challenges the quantification of the aid set out in the expert report and states that, in quantifying the aid, account should be taken only of the net cost to the State of its intervention in favour of the company.
(137)
According to the third memorandum submitted by France Télécom, the State has not placed any credit line at France Télécom's disposal through ERAP. The memorandum argues, moreover, that, under domestic law, declarations are not legally binding on the State, either vis-à-vis France Télécom or vis-à-vis third parties. Declarations do not constitute a legal instrument in the ordinary-law sense, nor are they an act giving rise to a right in the public-law sense. The State, however, cannot commit itself without an act giving rise to a right, carried out in compliance with the rules on competence (the declaration in the present case is a declaration of intent without any material implementation) and on budgetary procedure. Moreover, the State's responsibility is not incurred and in any event the obligation to make amends for wrongdoing does not constitute state aid as ‘in the event of the State's being ordered to pay damages, the transfer of resources stems, not from the legal act itself, but from the incurrence of responsibility as a result of that act. And the beneficiary of the transfer of state resources is not the company concerned but the victim who has suffered damage’. The memorandum's author also states that it is impossible to notify a legal act despite the fact that, under the Treaty, all aid measures must be notified to the Commission.
(138)
The annex to the memorandum describes more particularly the context in which the declarations were made, pointing out that this is necessary in order to measure their true scope. An analysis of the declarations in the light of events between late June and December 2002 thus shows that the declarations could not constitute a promise, and does not show that the appropriate measures planned by the State were financial measures. There were differences of opinion within the Government at the time and the Minister for Economic Affairs and Finance did not represent the government standpoint. The author states that the expert provides no legal or factual evidence of the State's will to commit itself. A study of the facts reveals that there was no such intention on the part of those responsible, who were at a loss how to solve the problem, and that operators had never said they believed the State had committed itself to one or other solution.
(139)
The economic report submitted by France Télécom, for its part, stresses that the scope of the analysis contained in the consultant's report is highly restrictive ‘as it analyses principally the effects of the declaration of 12 July 2002 and uses a single methodology, that of event studies’. The report also states that the methodology used by NERA is based on ‘a highly theoretical approach which consists in assuming that the markets are efficient and in measuring the impact of an event by quantifying the variations in stock exchange prices at the time of that event. This over-theoretical approach does not reflect the reality of the situation of a reference shareholder’. The report stresses, moreover, that the NERA report is ‘confused about the profits, the sources of profits and the costs for France Télécom and its shareholders’.
(140)
The report concludes by saying that the consultant's conclusions are wrong because:
-
‘Analysis of the France Télécom group's situation at the time of the announcement of the results for the first half of 2002 shows that (i) the group has an unbalanced balance sheet and a short-term liquidity problem, but (ii) the business's operating results are very good.
-
Analysis of the range of measures a prudent shareholder must envisage in a situation of heavy indebtedness indicates that it was rational to introduce a recovery plan, including a recapitalisation, for a group with healthy assets whose intrinsic worth is greater than the sum of its market capitalisation and its net debt.
-
Analysis of value creation and profitability prospects suggest that the State is making a very good investment by participating in a capital increase and that it is taking little risk in providing a shareholder loan’.
4.14. Comments from ECTA
(141)
ECTA is of the opinion that the following measures constitute state aid: (i) the ministerial declarations of July and October 2002 informing the market that the State would not leave France Télécom in financial difficulties; (ii) the acceptance by the State of the payment of dividends for 2001 in shares and not in cash; (iii) the granting of a EUR 9 billion credit line and the advance commitment by the State to take part in the future capital increase; (iv) the provision by the State of a state guarantee for the benefit of ERAP enabling the latter to borrow on the markets at a rate of 3,375 % instead of the 10,4-10,9 % applicable to a company with junk bond status; and (v) the apparent transfer of France Télécom's employees within ERAP despite the fact that they continue to work for France Télécom.
(142)
The aid granted to France Télécom enabled it to maintain an aggressive marketing and advertising policy and to continue as an integrated operator while increasing its stake in Orange. ECTA is of the opinion that a company in France Télécom's situation ought to have acted altogether differently, as did France Télécom's competitors in the global telecommunications services market, such as British Telecom and KPN, which had to dispose of strategic assets to reduce their debt.
(143)
ECTA is of the opinion that the measures mentioned in paragraph 141 constitute unlawful aid and that they cannot be justified under the Guidelines in so far as none of the criteria laid down in those guidelines are fulfilled. In the alternative, ECTA states that, if the Commission were to adopt any compensatory measures, these should be substantial. ECTA points out under the heading of structural measures that, without the state aid, FT would have had to dispose of Orange and Wanadoo. As to behavioural measures, ECTA proposes a reduction in the market shares of France Télécom, Equant, Orange and Wanadoo, pointing out, however, that these latter measures are harder to introduce than structural measures.
5. COMMENTS FROM FRANCE
5.1. Summary of the facts
(144)
The French authorities state by way of introduction that they have behaved in accordance with the prudent private investor principle from the outset. Since the announcement of France Télécom's results for the first half of 2002, which highlighted an unbalanced financial structure and significant capital needs despite good operating results, the State has drawn the necessary conclusions, placing a new CEO at the head of the Company and gathering together a banking syndicate which undertook from September 2002 to underwrite a capital increase when the time came. At the same time, the State asked the new management to carry out an in-depth audit of the Company. On the basis of the Ambition 2005 plan, about which the majority shareholder was kept regularly informed, and of the banking syndicate's commitment, the State announced, on 4 December 2002, its decision to participate in the strengthening of the Company's capital base to the tune of EUR 9 billion and the fact that it was prepared to place at France Télécom's disposal, through ERAP, an advance on this subscription remunerated at market rates. However, in view of the financial terms of grant of this advance by the French authorities and of the Commission's misgivings about the presence of aid elements in the measure, France Télécom preferred to resort directly to the bond market.
(145)
The French authorities then point out that the total amount of the financing resulting from the bond issues came to approximately EUR 9 billion, equivalent to the maximum amount of the advance constituted by the shareholder loan. They state that the success of the bond issues demonstrated France Télécom's ability to gain access to the financial markets under good conditions as well as the markets' confidence in the operational measures contained in the TOP plan and in the new management's ability to implement it. They also state that the capital increase was launched as soon as was technically possible, namely on 24 March 2003, and that it was a success.
(146)
At the meeting between the French authorities and the Commission on 22 January 2004 the French authorities stressed that, in their view, the recapitalisation operation satisfied the prudent investor test and that, consequently, the financial measures granted by the State to France Télécom did not contain any aid element. In their opinion, the prudent investor test may be defined as the need, before acting, to appoint a new CEO, to conduct an audit and to prepare a credible plan. The chronology of events illustrated by the French authorities in itself demonstrated the prudent character of the State's conduct. The French authorities emphasise that, with these factors under control, they were masters of the situation (in particular the issue price).
5.2. The Company's financial situation
(147)
The French authorities maintain that, when the decision to invest was taken, France Télécom was not a firm in difficulty within the meaning of the Guidelines. The Company's turnover was increasing steadily (by 10 % between the first half of 2001 and the first half of 2002), and its gross cash flow was high and growing faster than its turnover. Despite this, the French authorities refer to the Company's unbalanced financial structure as at 30 June 2002 and point out that the losses were mainly due to the exceptional provisions and write-downs linked to the depreciation of assets acquired prior to the entirely unforeseeable reversal of the markets. France Télécom's operating costs were increasing more slowly than its turnover, which meant that its profitability was improving. Moreover, operating results and cash flow were increasing (with cash flow up 15 % on the first half of 2001). France Télécom's very good performance prospects were further improved by the TOP plan. This performance was confirmed when the 2002 accounts were published, showing as they did the virtuous dynamic triggered within the Company by the new management.
(148)
On the criterion concerning the movement in company capital referred to in point 5(a) of the Guidelines, the French authorities point out that the relevant indicator is, pursuant to Article L225-248 of the Commercial Code, the company capital of France Télécom SA, which has always remained positive and has never fallen by half. France Télécom was therefore not in the situation referred to in the Guidelines in which shareholders' funds fall below the company capital.
(149)
France Télécom was not in a cessation of payments situation; there were merely signs of a possible liquidity requirement by the first half of 2003 should the expected market recovery not occur. The French authorities add that France Télécom had anticipated reserves of EUR 6,9 billion as at 31 December 2003 and could have crossed the threshold of the year 2003 without resorting to the financial market. At the meeting on 22 January 2004, the French authorities indicated that France Télécom had had recourse to the syndicated loan, which was less expensive than the bond market and out of which EUR 4 billion had been made available to the Company.
(150)
The French authorities observe inter alia that France Télécom had access to the financial markets during the course of 2002 and describe all of the financing instruments at the Company's disposal between 11 July 2002 and 15 January 2003 (92). They mention the fact that, on 14 February 2002, France Télécom negotiated the provision of a syndicated credit line of EUR 15 billion and that during the course of 2002 the Company issued bonds (93), EUR 442,2 million worth of which was repayable in shares.
(151)
The French authorities also state that France Télécom was not open to any financial risk owing to the downgrading of its credit rating by the rating agencies as there was no early repayment clause in the covenants.
(152)
Moreover, according to the concordant opinion of several consultant banks consulted between June and November 2002, France Télécom was, prior to the announcement of the Ambition 2005 plan and of the majority shareholder's support, able to refinance itself on the bond markets. The French authorities thus indicate that, in July and September 2002 respectively, […] (94) and […] offered to refinance, through swap programmes starting in October or November, France Télécom's bond debts maturing between 2003 and 2005.
(153)
As to the statement by France Télécom's former CEO to the effect that the Company no longer had access to the market (95), the French authorities point out that his opinion was necessarily subjective in view of the circumstances.
5.3. Duty of care of the State as shareholder
(154)
As regards the allegation that the State had failed in its duty of care as shareholder with regard to the Company's past conduct, the French authorities maintain that the argument to the effect that a prudent investor would not have found himself in the same situation as the French State is irrelevant as, according to well established case law, the Commission has to place its analysis at the time when the investment decision was taken, unless it can be shown that the State's past conduct involves aid elements, something which has not been claimed in the present case. At all events, even if the legal obligation on the State to hold a majority of the capital placed France Télécom at a disadvantage, the Commission cannot, without violating the neutrality principle enshrined in the Treaty, call into question the French authorities' choice to maintain the Company in the public sector. The French authorities stress that they intervened as soon as they became aware of the financial difficulties encountered by the Company. In their comments of 29 July 2003, the French authorities insist on the fact that, according to the judgment in Stardust (96), it is necessary to place oneself in the context of the period during which the financial support measures were taken and that this ‘… excludes automatically the period before July 2002’. They also stress that the payment in shares of the dividends for 2001 was in keeping with the prudent private investor principle inasmuch as there was at that time a strong potential for an increase in the share price.
5.4. Rationality of the TOP plan
(155)
The French authorities stress that, in the light of the above, the increase in the cash flow and the strengthening of the capital base provided for in the Ambition 2005 plan are components of a strategy that would have been followed by any prudent majority shareholder. Hence, owing to the fact that the Company's fundamentals were healthy, France Télécom's situation cannot be compared to that of companies such as Vivendi Universal or Crédit Lyonnais.
(156)
As to the rationality of the TOP plan, the French authorities state that the plan in question represents a considerable effort on the Company's part. It is an overall plan for a change of management direction based on specific actions which has already produced its first positive results. The French authorities stress in this connection that the plan is an extremely precise one which makes possible an increase in the Company's profitability with a rate of return on investment (RRI) of 43 % in 2005 for those investors who participated in the April 2003 capital increase, that is, a much higher return than the reference RRI (11 %) expected by a private investor in the telecommunications sector. The TOP plan also includes a staff management optimisation chapter. As to the disposal plan, the French authorities state that the disposal of assets at the end of 2002 made it possible to carry forward any liquidity constraint to the end of 2003 without even having to resort to the financial markets. Moreover, a disposal of strategic assets would not have been in the interests of France Télécom and its shareholders in the medium to long term.
(157)
The French authorities stress, lastly, that the strategies followed by competing operators are no more prudent and that a plan must be assessed, not in the light of the scope or strategic character of the assets whose disposal is being contemplated, but in that of the rationality of the plan as a whole. Moreover, the success of the December 2002 and January 2003 bond issues confirmed a posteriori the confidence private investors place in the Company's operational potential.
5.5. Application of the prudent investor principle to the participation in the strengthening of the Company's capital base
(158)
With regard to the application of the prudent private investor principle to the announcement by the State of its anticipated participation in the strengthening of the Company's capital base, the French authorities observe that they made their agreement conditional on the presentation, by the new management, of a new, credible rebalancing plan and on participation by the banks.
(159)
On compliance with the concomitance principle, the French authorities point out that, from the outset, the State shareholder took every step to ensure the concomitant participation of public and private shareholders and that it took no risk before private investors did. Thus, the announcement of the State's intention to participate in the strengthening of the Company's capital base dates from 12 September 2002 (97), and on that date a banking syndicate had already undertaken to underwrite, when the time came, that part of a capital increase which was intended for private investors alongside the public shareholder, on condition that a credible rebalancing plan was announced to the market. The French authorities stress that this condition was normal in view of France Télécom's unbalanced financial situation, the State's participation also being conditional on the announcement of a plan considered by the market to be credible. They add that, if the private investors had not stood guarantors, the State would not have made such an announcement.
(160)
The French authorities also state that the private financing predated the public financing inasmuch as the financial contributions by private investors - in the form of debenture loans and the rescheduling of bank loans between December 2002 and February 2003 - took place in significant proportions. The analysis of any making available of state funds must, in the French authorities' view, be carried out in the light of such private financing.
(161)
The French authorities maintain that the recapitalisation operation carried out on 24 March 2003 complies with the concomitance principle. The State, for its part, made no capital contribution before the private shareholders did, as can be seen from the arrangements for the shareholder loan described in point 5.6, which included no unconditional recapitalisation commitment by the State before March 2003. The banks' undertaking of September 2002 referred to in paragraph 159 was thus confirmed by the banking syndicate's formal guarantee in March 2003 and enabled the State to take no risk as regards the participation of private investors in the capital increase. The French authorities stress that, in accordance with the judgment in Alitalia (98), the State did not commit itself formally prior to the banks' formal undertaking. The private shareholder participation is significant at 40 %, which has been held by the Court of Justice to be in keeping with the concomitance principle. The underwriting banking syndicate was selected by open tender, which ensured that the banks' remuneration corresponded to optimised market conditions, notably as regards the commission paid to the banks. The French authorities also mention that the commissions paid in the present case ([…] % of the total amount underwritten) are in keeping with the guidelines set out in the Alitalia decision of 19 June 2002 (99).
(162)
As regards the expected return, the French authorities state that, as has already been indicated, compliance with the prudent private investor principle is also demonstrated by the high profitability prospects of the TOP plan, as confirmed by the plan's favourable reception by the market. They maintain, moreover, that, when the investment decision was taken, France Télécom was not a firm in difficulty within the meaning of the Guidelines and that the Company had access to the financial markets during the second half of 2002.
(163)
The French authorities stress that the capital increase was effected as soon as it was technically possible to present to the State and to investors updated data on the Company's operational prospects, which demonstrates the State's choice of high-quality investors motivated by long-term return prospects. The French authorities point out that the timetable constraints were technical constraints linked to France Télécom independent of any favourable stock market conditions.
(164)
The French authorities state that the operation was a success and that the fixed amount underwritten was more than five times that sought from the market.
(165)
The French authorities add that the amount of the recapitalisation is not a relevant factor and that all that matters is whether the operation was rational. At all events, the amount in the present case was not excessive compared with, say, the capital increase in the case of KPN.
(166)
Concluding on this point, the French authorities stress that the capital increase seems already (the French authorities' comments date from July 2003) to be a prudent investment as France Télécom's share price has risen by almost 50 % compared with the rate of capital increase.
(167)
As to the repayment of the ERAP loan by the State as announced by the deputy Minister for the Budget in December 2002, it concerns only the modalities for investment by the State and has no impact on relations between the State, the shareholders and the Company.
5.6. The shareholder loan
(168)
The French authorities maintain that the loan proposal was never signed by France Télécom owing to the excessive cost of the financial terms proposed to it and the fact that the Commission was raising doubts about the measure's lawfulness under the Treaty. Consequently, no state resources were placed at the Company's disposal via the shareholder loan proposal. The French authorities argue that the entry into force of the loan cannot be deduced from the announcement made by the State on 4 December 2002, which concerns only the commitment by the State shareholder to participate in the operation to strengthen the Company's capital base, mention being made only of the ‘possible’ (100) provision of a shareholder loan.
(169)
The French authorities observe that, at all events, the loan proposal conferred no advantage on France Télécom.
(170)
The French authorities thus make clear that, in so far as it has not entered into force, the loan has not been used by the Company and therefore has not been able to postpone the Company's liquidity needs. They maintain that the loan announcement does not constitute a guarantee. French law does not recognise an implicit guarantee: any guarantee provided by the State must be enshrined in a law. It is wrong to treat the announcement of a possible state loan as a guarantee. The French authorities insist that the guarantee which the State provided to ERAP to enable it to finance its participation in the strengthening of France Télécom's capital base must not be equated with a guarantee given to France Télécom. As far as ERAP is concerned, the French authorities state categorically that its role was entirely neutral and that it intervened only for budgetary reasons.
(171)
Likewise, the announcement by the State of a loan proposal did not facilitate France Télécom's access to the bond market. First of all, the debenture loans are not covered by any sort of guarantee, their duration being longer than that of the shareholder loan. Moreover, bondholders have no recourse in the event of non-payment upon maturity. Secondly, it is not possible to compare the announcement, by the State, of the possibility of its making an upfront prepayment towards the strengthening of the Company's capital base with the guarantee given in the above-mentioned Crédit Foncier de France decision because, inasmuch as the loan envisaged in the present case was hypothetical and strictly limited in duration and amount, it could not by itself resolve the Company's financial problems having regard to its debt repayment schedule. Thirdly, the bond issues were determined solely by the market's perception of France Télécom's capacity to honour its commitments unaided by any state guarantee. This is attested to by the spreads, which are consistent with France Télécom's credit rating and therefore appreciably higher than those of other operators. The confidence shown by the market at the time of the said bond issues is thus due essentially to the change in the management team and the favourable reception accorded to the new strategy revealed when the Ambition 2005 plan was presented.
(172)
As to compliance with the prudent investor principle in relation to any shareholder loan, the French authorities stress that, when the decision to take part in a capital increase was taken and the conditions therefor were met (credible plan and management, underwriting syndicate), it was logical that the State should make an upfront prepayment. The first discussions about the loan proposal date back to November 2002. The French authorities also stress that the legitimacy of such a measure could not be challenged because, as is mentioned above, it was based on a credible, detailed plan the content of which was mostly known at the time of the announcement of the loan proposal on 4 December 2002. Moreover, the State had already received the undertaking, conditional on the presentation to the market of a credible plan, from the banking syndicate and it knew full well at the end of November that that condition would be met given the market's positive reaction to the appointment of the new management. The French authorities stress in this connection that it is not pertinent to assess the amount involved in the present case but that, in accordance with the Alitalia judgment, it is necessary to examine the conformity of the conditions of financing the operation for a company of comparable size.
(173)
As to the remuneration of the potential loan, the French authorities stress that it was granted on normal market terms and that it was increased by a premium to reflect its subordinate nature. The proposal provided for a non-utilisation commission and the absence of security was in keeping with the practice of a prudent investor in the case of a short-term loan granted by a shareholder upfront of his subscription to a capital increase. The repayment of the sum in shares was customary and was based on the cash value.
(174)
The French authorities state that, in accordance with the Alitalia judgment, rather than compare the strategy chosen by the public shareholder with alternative solutions involving less risk, the Commission should assess whether, in similar circumstances, a private investor could have taken such a measure.
5.7. The announcements made by the State
(175)
In their comments of 29 July 2003, the French authorities stress the context which must be taken into account when analysing the declarations made by the State in its capacity as a prudent shareholder and not as a public authority. Thus, between the months of September and December 2002, the State engineered a change in management the key feature of which was the change in the Company's CEO and closely monitored the drafting of a rebalancing plan while at the same time ensuring the support of private investors with a eye to the launch of a possible capital increase (see above for a detailed description of the State's intervention). According to the French authorities, these operational measures had a decisive financial impact, were very well received by the financial markets and led to the recovery in France Télécom's share price.
(176)
The French authorities stress that the State never indicated or suggested that it would give France Télécom its unconditional and unlimited support. They add that ‘the State … emphasised in the summer [the French authorities are referring to the statement made by the Minister for Economic Affairs on 12 July] that it would act like a prudent private shareholder and not as a public authority and that it intended to intervene as a shareholder in a way (still to be defined) which would be no different from that which a private investor would choose, which necessarily ruled out the possibility that the State had already decided to intervene in an unconditional and irrevocable manner’ (101). This declaration that the conditions would not differ from those of a private investor, excludes de facto any unconditional and irrevocable support. The French authorities also argue that the declarations made by the French authorities between July and October 2002 constituted ‘vague prior declarations’ without any ‘corresponding practical measures’ (102). The French authorities state in this connection that the subsequent declarations were to be assessed in the light of the first declaration and that it is wrong to assert that as of 12 July 2002 the State had ‘committed itself irrevocably to supporting France Télécom’ and had, on that occasion, entered into ‘an irrevocable commitment to participate in the strengthening of the capital base’. The French authorities point out that the State shareholder announced its intention to participate in the strengthening of the Company's capital base for the first time in September 2002 and that ‘this would take the form of a transaction followed by the market (reference to a timetable to be defined in the light of market conditions) (103)’.
(177)
Concerning the declaration of 2 October 2002, the French authorities argue that this confirmed that the presentation of a credible plan was a precondition for the State's participation.
(178)
The French authorities state that, at all events, it was not possible ‘to deduce from the lack of precision of the State's declarations concerning France Télécom between July and October 2002, despite the State having indicated that it would act like a prudent investor, any intention on the State's part - nor a fortiori any commitment- to take measures which would contravene the Community rules on state aid. Infringement of the Treaty rules cannot be presumed and cannot be caused by vague declarations prior to a decision without any measures translating them into practice’ (104).
(179)
The French authorities maintain that ‘the only specific measures envisaged by the State in its capacity as majority shareholder in France Télécom are those set out in the information/notification dossier forwarded to the Commission and announced publicly on 5 December 2002, namely the participation alongside private shareholders in a EUR 15 billion capital increase in proportion to the share held by the State in France Télécom's capital and a possible shareholder loan remunerated at market rates upfront of the capital increase. The indication by the State that it would play its role of prudent shareholder in no way constitutes a state guarantee. If the declarations made by the State between July and October 2002 had really been legally equivalent to, or even simply perceived by the market and the rating agencies as being, a promise to provide France Télécom with an “unlimited guarantee”, then there would not have been any downgrading of France Télécom's rating in July and the company's spreads and rating during that period would have reflected the state risk (AAA rating and very low spread). Lastly, any factoring in by the rating agencies of the State's presence as majority shareholder irrespective of any implicit or explicit guarantee or of any specific measure and irrespective of the company's specific financial situation at any given moment cannot in itself be considered state aid. Such an approach would be contrary to the principle of neutrality of Community law as recognised by Article 295 of the EC Treaty’ (105).
5.8. Movements in France Télécom's share price and spreads
(180)
The French authorities argue that only the operational measures had an impact on France Télécom's share price. Thus, the Company's share price rebounded on 2 October 2002 (up more than 10,4 % on the previous week) following the announcement of the appointment of the new CEO, indicative of a new operational management style, and the share price's progress continued upwards with the announcement of the TOP plan and of the new executive board on 5 December 2002, which led to a rise of more than 25 % in two days. The French authorities maintain that the participation by the State in a strengthening of the capital base and in a possible shareholder loan constituted measures described in the press before 5 December 2002 and cannot therefore be considered as being behind the share price increase. The declarations of principle made by the State between July and October 2002 were not the determining factor in this increase and as long as there were no operational measures the share price fluctuated, reflecting the market's uncertainty about the Company's situation, and the Mobilcom risk in particular. This perception led to a fall in the share price, which reached its lowest point on 30 September 2002 following a period of relative stability during the summer in the absence of any specific announcements or rumours. During that period, the State's declarations as to its intention to play fully its role of shareholder did not stop the downward trend in France Télécom's share price.
(181)
As to movements in France Télécom's spreads, the French authorities state that they cannot be relied upon to highlight alleged support for the Company linked to the July declarations. A comparative analysis of the spreads of France Télécom and Deutsche Telekom since January 2002 shows a certain similarity throughout the period concerned: France Télécom's spreads narrowed in July 2002, reflecting the assessment of the telecoms risk independently of the State's declarations. Moreover, the spreads widened in December 2002 following the announcement by the State of the operational measures it was considering taking. The French authorities conclude that the movements in France Télécom's spreads are linked to trends in the telecommunications sector and that the State's declarations were not a decisive factor.
(182)
In response to the dispatch of the consultant's legal report and economic report on 9 and 10 June 2003, the French authorities maintained that remarks made by the Minister for Economic Affairs and Finance in an interview published in Les Échos on 12 July 2002 are outside the scope of the investigation procedure opened by the Commission on 30 January 2003. The Commission was, they claimed, no longer able to extend the procedure to include these remarks as the 18-month period provided for in Article 7(6) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (106) had almost expired. At all events, they reserved the right to present to the Commission further expert opinions on the consultant's reports.
(183)
The French authorities have presented the following comments on the legal report:
-
They point out ‘first of all that the legal report is based on an erroneous (not to say tendentious) interpretation of the facts. In particular, … the report manifestly twists - albeit clear - remarks made by the Minister for Economic Affairs in the course of an interview with a journalist published in July 2002. The French authorities strongly contest that it is possible to propose interpretations as unfounded as these in order to draw legal conclusions and in particular to assert that there exists any guarantee granted by the State to France Télécom’.
-
‘They reiterate … that the State as shareholder in France Télécom has not only always intended to behave like a prudent investor with regard to France Télécom but has also chosen to express clearly and publicly that this position would be the point of departure for all of its potential actions in this area …’. The Minister's July 2002 interview makes no mention of any decision being taken. ‘… [W]hile remaining confident in the company's viability, the State was merely taking note of the market's doubts about France Télécom's situation and, in its capacity as majority shareholder, was trying to refine its analysis without being able, at that stage, to make an accurate diagnosis or take any decision’. ‘Moreover, there was no reason to suppose a priori that the phrase “appropriate steps” referred specifically to financial measures’.
-
‘The French authorities have also noted numerous inaccuracies in the reasoning set out in the legal report. The report is thus manifestly short on objectivity, adopting highly contestable legal analyses (for example regarding the characterisation of letters of intent and the scope of a unilateral commitment in civil and commercial law) and making an unjustified application to the facts at issue of certain irrelevant legal precepts (this is the case, for example, with the application of the theory of business management or of the rules of public international law in relations between a company and its majority shareholder’.
-
‘The legal report's finding of the existence of an “unlimited guarantee”, granted by the State to France Télécom, is in any event totally baseless in Community law’. In accordance with the Compagnie nationale Air France judgment (107), the remarks in question cannot give rise to any firm and unconditional commitment on the part of the State. Similarly, ‘the solution adopted in the Crédit foncier de France case - assuming it is in keeping with Community law, which is not certain as the decision has not been the subject of an appeal - relates to radically different circumstances’. ‘What is involved here is not even an official communiqué from the Government or from France Télécom, but merely a press article reproducing the text of an interview with the Minister for Economic Affairs in the wider context of the Government's priorities and therefore lacking any probative force’. ‘Attempts to place the Minister's remarks of 12 July 2002 in some domestic-law legal categories (especially company law and administrative law) likewise do not succeed in proving the existence of any guarantee in favour of France Télécom’. With regard to the comparison between the Minister's July declarations and a letter of intent, the French authorities stress that ‘(i) firstly, it is of the essence of the letter of intent that it is addressed to a beneficiary; (ii) secondly, and as an extension of the preceding observation, the effectiveness of the method is dependent on acceptance by the said beneficiary; and (iii), lastly, the scope of the commitment given (both as regards its object and as regards the force which its author wishes to give to it) depends exclusively on the terms employed’. ‘Thus … the general - to say the least - character of the Minister's remarks … rules out without doubt any commitment in favour of France Télécom or its creditors, and a fortiori any obligation as to the result to be achieved (and hence any idea of guarantee) as well as any obligation as to the means’. ‘The Minister's reply … only confirms that no decision - other than to act like a “prudent investor” - had as yet been taken by the State shareholder, which, while trusting in the operational quality of the company, was not at that time able to make a sufficiently accurate diagnosis or to take any decision’. ‘The courts have … never held that a guarantee commitment without a specific beneficiary or beneficiaries may thus be relied upon by any person who might have an interest therein. This is not surprising as it is in the nature of a guarantee or of a letter of intent that it is addressed to one or more beneficiaries. Nor is it surprising, since it was not intended for any specific beneficiary, that the alleged commitment was not accepted’. As for the business management hypothesis, this concept is entirely inapplicable to the present case. ‘Regarding Article L.465-1 of the Monetary and Financial Code, the French authorities have stressed that supposing it to be transposable to the State, it would condemn, not the mere changing by the State of its intentions, but only the declaring of an intention that was false or misleading from the outset, which was manifestly not the case here inasmuch as the remarks only reflected the lack of any decision whatsoever in the then state of the shareholder's knowledge’. As far as administrative law is concerned, the French authorities maintain that ‘[f]irst of all, mere remarks made to a journalist - such as those made by the Minister for Economic Affairs on 12 July 2002 - do not constitute a “tortious act” capable of giving rise to rights and obligations, and even less a guarantee granted to France Télécom by the State. Secondly, the liability of the State can in no way be incurred by reason of the highly general remarks made by the Minister, whether because of their alleged lack of implementation - the broken promise hypothesis - or, conversely, because of their implementation - the unlawful promise hypothesis’.
-
‘The legal consultant's conclusions clearly fly in the face of the Commission's decision-making practice and of Community case law in the field of state aid, which make the existence of aid conditional on proof of a firm, precise and unconditional commitment on the part of the State concerned - something which the Minister's remarks of 12 July 2002 could in no way be construed as being.’‘A state measure, in whatever form, must be sufficiently precise and concrete for the Commission to be able to determine the very existence of an advantage’. ‘To be able to apply the prudent investor test, the Commission must have at its disposal all the necessary information concerning the specific modalities of the measure that is being scrutinised’.
-
‘The adoption by the Commission of the legal consultant's arguments would have discriminatory effects which would run counter to the principle of legal certainty. In particular, the reasoning followed by the consultant would have absurd procedural consequences in that each Member State would be obliged to notify to the Commission the slightest plan to give an interview or make a public declaration about a company of which it was the reference shareholder’. Moreover, this argument would result in unjustified discrimination between the Community institutions and the Member States. ‘It is a principle of Community law that no person may rely even on promises made by a Community institution in the absence of “specific, unconditional and concordant assurances, emanating from authorised, reliable sources, given to him by the administration”’ (108).
-
‘More fundamentally, the approach adopted by the legal consultant is likely to undermine the principle of neutrality enshrined in Article 295 of the EC Treaty and would make it impossible to apply the prudent investor test. If the consultant's reasoning were taken to its logical conclusion, any public intervention by a State in relation to a public undertaking would thus constitute aid and a State would therefore always be presumed to act as a public authority and not in the capacity of a shareholder in the undertaking’.
(184)
The French authorities have presented the following comments on the economic report:
-
‘The economic consultant's conclusions have no intrinsic validity inasmuch as they are based exclusively on the mistaken premiss (contained in the legal report) that France Télécom received an “unlimited guarantee” from the State’.
-
‘Moreover … the economic report in no way shows that the company enjoyed any advantage over its competitors’.
-
‘The microeconomic method of the event study used by the economic consultant raises a number of fundamental issues, including the use of the very short-term trend in the share price as the sole measure of changes in the value of the company contrary to recognised usage (including by the Community courts (109) regarding valuation, and this despite the fact that the manifest errors committed recently by the markets in assessing the value of telecommunications operators call for, to say the least, serious caution. What is more, the economic consultant is completely ignorant of the specificities of the situation with regard to the France Télécom share at the material time, such as its historically high level of volatility, which clearly rule out the use of this method in the present case’.
-
‘The event study method is all the more inappropriate in the present case as the share price did not move in only one direction during the relevant period, but underwent a rapid succession of strong rises and falls in response to the multitude of contradictory factors influencing the share price at that time, with the result that the consultant is wrong to carry out his analyses in the light of a single factor (the ministerial interview on 12 July 2002) to the exclusion of all others (despite the fact that there are no grounds for asserting that market operators considered the ministerial interview to be an important factor for investors in July 2002)’. ‘The markets thus received at that time information about the situation of the company itself (for example, on the risk associated with MobilCom)’.
-
‘Moreover, the consultant's calculations are in reality essentially determined by the choice of methodological hypotheses (such as the observation window and assessment period), established as they are without any solid justification and in a largely arbitrary manner, which deprives his findings of any probative value’. ‘The amount calculated by the economic consultant is essentially linked to the utilisation of a reference trend in France Télécom's share price which bears no relationship to the event examined in the study (the Minister's comments of 12 July 2002)’. ‘Furthermore, the consultant's deductions are contradicted by simple, unavoidable tests such as the observation that, over the relevant period, France Télécom's shares and bonds moved in quite a similar way to the securities of its closest comparable competitor, Deutsche Telekom’. The consultant's report can also be criticised for ‘the unjustified heterogeneousness of the method of reconstituting the “normal” movement’ in shares and bonds, or the lack of care taken by the consultant in giving prominence to a ‘normal’ trend in market indebtedness on the basis of certain highly illiquid bond lines or in extrapolating the market value of a few bonds from the totality of the debt. Likewise, the extremely fragile basis of the theoretical calculation carried out by the consultant to estimate, on the basis of credit default swaps (‘CDSs’), the cost of the alleged guarantee granted by the State to France Télécom should be emphasised. The calculation takes no account of the specific rarity of CDSs during the period studied, which explains the excessive reactivity of that instrument (compared, for instance, with bond spreads) and rules it out as a suitable measuring stick over that period.
-
‘The economic consultant's conclusions as to the existence of supposed aid granted to France Télécom are based, moreover, on errors of reasoning and stem from a confusion between the alleged increase in the theoretical market value of the company, the profit derived from that increase by shareholders and debtors, and the conferment of a supposed advantage on the company’. ‘The consultant proceeds on the assumption that state aid increases the value of the company receiving it … [whereas] it should not be overlooked that market operators are nowadays fully aware of the risks which the grant of incompatible aid poses for a company … Consequently, … if it were to be perceived by the markets as unlawful, the grant of aid might lead to … a fall in the company's share price and hence in its market value’.
-
‘Such conclusions, which are based exclusively on an ex post analysis of the alleged “guarantee” granted by the State to France Télécom, are, moreover, incompatible with the assessment of the investor criterion, which calls for an ex ante evaluation’.
-
‘Last but not least, the economic report observes, as if there was any need to, that France Télécom was not a firm in difficulty at the time of the events in question (as it had access to the capital markets and no long-term viability problem) and that the participation by the State shareholder in the plan to rebalance the company's balance sheet was in keeping with the private investor criterion, thereby confirming the absence of any aid element in the financial measures forming the subject-matter of the Commission's investigation’.
6. OBJECT OF THE PRESENT DECISION
(185)
On 4 December 2002, the Commission received notification of a shareholder loan proposal which France was considering implementing in favour of France Télécom by way of an upfront prepayment towards its participation in a forthcoming operation to increase the Company's capital as part of a recovery plan entitled ‘Ambition 2005’. The notification's content is described in the opening decision. In order to decide whether the measures at issue are compatible with the Treaty, the Commission has examined the events connected with the proposal's notification, including the Government's declarations of July to September 2002 (110)(see Section 5). In carrying out this examination, the Commission has taken the view that the notified measures cannot be analysed without having regard to the Government's declarations of July to September 2002. By these declarations, the State manifested its will to take appropriate steps to resolve France Télécom's financial difficulties. Thus, the shareholder loan proposal is the concretisation of intentions previously expressed by the State. From a material point of view, there is no legal reason to limit the examination of the relevant facts to the facts which the Member State has decided to mention in the notification. The concept of aid is an objective concept based on economic reality. It follows that, if the Commission has knowledge of earlier facts which are objectively relevant, it must include them in its analysis.
(186)
In the present case, the Commission notes that the measures of December 2002, which were the subject-matter of the notification, were preceded by several declarations and measures by the French authorities dating from July. Firstly, these declarations and measures make it possible to better understand the reasons for and scope of the December measures. Secondly, they definitely had an impact on the perception which the markets and economic operators had of France Télécom's situation in December. Inasmuch as the conduct of economic operators was itself influenced by the conduct of the State, it does not constitute an objective parameter for then judging the conduct of the State. These prior interventions must therefore be taken into account in analysing the presence of aid in the December measures.
(187)
It is possible to view the successive declarations and measures of the French authorities from July 2002 onwards as forming a set which took concrete shape in the December measures (making available of a shareholder loan), these being the measures which were notified. Of course, aid can be said to exist only in so far as the various elements of the aid concept are present (selective advantage, state resources, and effect on trade and competition).
(188)
The analysis of the present case suggests at first sight the existence of a time lag between the advantages for the Company, which were particularly distinct in July, and the potential commitment of state resources, which seems to be more clearly established in December. Inasmuch as they clearly had an effect on the markets and conferred an advantage on the Company, the declarations by the Minister for Economic Affairs and Finance may be characterised as aid. It would not be easy, however, to establish beyond all doubt whether the July 2002 declarations were of such a character as to commit, at least potentially, state resources. In this respect, the Commission has carefully analysed numerous legal arguments seeking to show, firstly, that such public declarations were equivalent from a legal standpoint to a state guarantee and, secondly, that they placed the State's reputation on the line, with economic costs in the event of non-compliance. Taken as a whole, these elements might be thought to actually risk putting state resources in jeopardy (either by making the State liable towards investors, or by increasing the cost of future state transactions). The argument to the effect that the July 2002 declarations are aid is therefore innovative, but probably not without foundation.
(189)
The Commission does not, however, have sufficient evidence in the present case to establish irrefutably the existence of aid on the basis of this innovative argument. On the other hand, it does consider that it can establish the existence of aid elements by following a more traditional approach, taking as a basis the December measures which were the subject-matter of the notification.
(190)
For one thing, the existence of a commitment of state resources is clear in December. For another, the existence of an advantage for the Company in December is also evident as soon as one takes account of the impact on the markets of the prior declarations and measures.
(191)
In this connection, the ‘private investor in a market economy’ test cannot be used to justify this December intervention as the French authorities claim, inasmuch as economic operators' conduct in December was clearly influenced by the prior actions and declarations of the Government since July. While it may be doubted that the July declarations were sufficiently concrete to constitute aid in themselves, there is scarcely any doubt that such declarations were more than sufficient to ‘contaminate’ the markets' perception and to influence economic operators' subsequent conduct. If such is the case, this conduct on the part of economic operators cannot be taken as a neutral point of comparison from which to judge the State's conduct. The presumption based on the ‘private investor in a market economy’ test cannot therefore take as point of departure the market situation as it was in December but ought logically to be based on a market situation uncontaminated by the impact of the prior declarations.
7. ASSESSMENT OF THE MEASURE AT ISSUE IN THE LIGHT OF ARTICLE 87(1) OF THE TREATY
(192)
Article 87(1) of the Treaty provides that any aid granted by a Member State or through state resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is, in so far as it affects trade between Member States, incompatible with the common market. The Treaty does not distinguish between measures of State intervention by reference to their causes or their aims but defines them in relation to their effects (111). The concept of aid refers to state measures which, in any form whatsoever, are likely directly or indirectly to favour certain undertakings or products in an appreciable way and which threaten, even potentially, to distort competition (112). According to well established case law, the concept of aid embraces not only subsidies themselves, but also interventions which, in various forms, mitigate the charges which are normally included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are similar in character and have the same effect (113). It follows from the above that the concept of aid is based on the economic concept of advantage, the formal criterion being therefore immaterial (114). In conclusion, the concept of aid is an objective concept which takes no account of the legal form of a state measure, being exclusively concerned with the latter's effects (115). Consequently, these provisions must be interpreted not on the basis of formal criteria but rather by reference to their purpose, which, according to Article 3(g) of the Treaty, is to ensure that competition is not distorted (116).
(193)
For a measure to qualify as aid, several elements must be present: a selective advantage, granted through state resources, which distorts or threatens to distort competition and trade between Member States.
(194)
As regards the advantage, the Commission would observe that the shareholder loan (which constitutes the upfront prepayment by the State towards the Company's recapitalisation), confers an advantage on France Télécom as it enables it to increase its means of financing and to reassure the market as to its capacity to meet its maturities. Even if the loan agreement has never been signed, the appearance given to the market of the existence of such a loan is likely to confer an advantage on France Télécom as the market has considered the Company's financial situation to be more secure (117). This may have influenced France Télécom's borrowing terms.
(195)
As to the condition relating to state resources, the Commission would point out that the fact that an advantage results from the giving of a state commitment leading to a potential, but not immediate, transfer of resources does not rule out the possibility that the advantage may have been granted through state resources.‘In that respect, it should first be noted that, according to settled case-law, it is not necessary to establish in every case that there has been a transfer of State resources for the advantage granted to one or more undertakings to be capable of being regarded as a State aid within the meaning of Article 87(1) EC’ (118). Thus, even an advantage granted through a potential additional burden for the State constitutes state aid where it affects competition and trade between Member States (119).
(196)
Contrary to what the French authorities and France Télécom maintain, the Commission finds that a potential additional burden on the State's resources was created by the announcement of the provision of the shareholder loan coupled with the fulfilment of the preconditions for such provision (120), by the impression given to the market that the loan had actually been provided (121) and, lastly, by the dispatch to France Télécom of the loan contract initialled and signed by ERAP (122). While it is true that the contract was never signed by France Télécom, this does not mean that there was no potential commitment of state resources. In so far as the document constituted a contractual offer and as long as it was not rescinded, France Télécom could have signed it at any time, thereby acquiring the right to obtain immediate payment of the sum of EUR 9 billion. Inasmuch as it could not be unaware of this, the State accordingly had to keep at France Télécom's disposal through ERAP the amount of the corresponding resources.
(197)
The Commission must therefore consider whether the advantage thus granted to France Télécom satisfies the prudent private investor test and whether it affects competition and trade between Member States.
(198)
The advantage which the measures at issue procured for France Télécom enabled the Company to mitigate or partly avoid the consequences normally flowing from its unbalanced financial situation. It will be recalled that the purpose of the State's intervention was explicitly to resolve the financial crisis while substantially preserving the integrity of France Télécom's operational structure and its rate of domestic growth (a purpose which has essentially been achieved inasmuch as France Télécom has recovered and at the same time retained the integrity of the group apart from a few minor disposals). In so far as the advantage granted to France Télécom is selective, it is clear that that advantage would distort competition between France Télécom and its competitors. It must be concluded that, in a competitive sector like telecommunications, the advantages enjoyed by France Télécom distort or threaten to distort competition to a particularly appreciable extent.
(199)
When state financial aid strengthens the position of an undertaking compared with other undertakings competing in intra-Community trade, the latter must be regarded as affected by that aid (123). Similarly, where a Member State grants aid to undertakings operating in the service and distribution industries, it is not necessary for the recipient undertakings themselves to carry on their business outside the Member State for the aid to have an effect on Community trade (124).
(200)
In so far as France Télécom operates in markets which have been gradually opened up to competition since the end of the 1980s, the declarations made by the Government as from July 2002 are likely to affect trade between Member States. The telecommunications sector is today one of the most dynamic and most integrated sectors in Europe. Many are the operators in this sector who, like France Télécom, are active in more than one Member State (125).
(201)
It follows from the above that the measures in question are likely to affect trade between Member States.
(202)
The prudent private investor principle is discussed in Section 8 as part of the examination of all the declarations made by the Government during the months preceding the loan proposal.
8. PRINCIPLE OF THE PRUDENT PRIVATE INVESTOR IN A MARKET ECONOMY
(203)
As previously mentioned, the Commission would stress that the notified measures cannot be analysed without taking into account the declarations made by the Government between July and December 2002. The content of these declarations and the impact they had on the market show that the State had decided as early as July to support the Company.
(204)
The Commission would point out first of all that Community law recognises in general the importance of promises and declarations made by the State for the application of the rules on state aid (126). On 12 July 2002, Les Échos published an interview with the French Minister for Economic Affairs and Finance in which the Minister confirmed more than once that if France Télécom were to have any financing problems, then the State would take whatever measures were necessary to overcome them. The precise wording of the published interview is as follows:
‘You mention market excesses. France Télécom's share price is highly volatile. You are the majority shareholder in the company, do you have a message to convey?
We are the majority shareholder, with 55 % of the capital, there is clearly no question of our “renationalising” the company, as I have sometimes heard it said. I feel responsible for the State's financial interests. The State shareholder will behave like a prudent investor and if France Télécom were to face any difficulties, then we would take appropriate steps.
Was the State behaving like a prudent investor when it let France Télécom get deeper into debt, by moving, for example, into Germany?
It is not for me to criticise my predecessors. I would point out that the entire industry was pursuing the same strategy at the same time. Having said that, the ideologically motivated retention of a majority holding has not made it any easier to internationalise France Télécom, as it has not been able to pay for its acquisitions with shares. Hence the indebtedness. I repeat, if France Télécom had any financing problems, which is not the case today, the State would take whatever decisions were necessary to overcome them.
You are reviving the rumour of a capital increase…
No, certainly not! I am simply saying that we shall take appropriate measures when the time comes. If it is necessary.
…’ (127)
(205)
The interview has never been disowned by the French authorities (128). On the contrary, its substance has been confirmed by successive statements contained in press releases of the Ministry of Economic Affairs and Finance dated 13 September, 2 October and 4 December 2002. The focus became narrower (129) with each subsequent declaration, culminating in the indication of the detailed arrangements for implementing the commitment to resolve France Télécom's financing problems (amount of the capital increase and state participation, shareholder loan, support for the Company's refinancing capacity before the recapitalisation) which formed the subject-matter of France's notification. The first press release of the Ministry of Economic Affairs and Finance dated 13 September 2002 spells out how the State will participate in the future increase in France Télécom's capital: ‘The State will support the plan's implementation and contribute to a very substantial strengthening of the company's capital base, according to a timetable and in a manner to be determined in the light of market conditions’. It adds that ‘Meanwhile, the State will, if necessary, take measures to spare the company any financing problems’. The same remarks are made in the press release of the Ministry of Economic Affairs and Finance of 2 October 2002: ‘The State will assist in the implementation of the recovery measures and will contribute to the strengthening of the company's capital base in a manner to be determined in close collaboration with the company's chairman and board. As has already been indicated, the State will, if necessary, take steps in the meantime to prevent the company from being faced with any financing difficulties’. The press release of 4 December also focuses on these two aspects, namely, the participation in the capital increase and the refinancing of the Company through a shareholder loan in the form of a credit line (130).
(206)
Taken as a whole, these declarations may be regarded as having made public the State's intention whereby, if France Télécom had any financing problems or financial difficulties, it, the State, would do whatever was necessary to overcome them. As will be seen in Section 9, it was already clear at the time of the first of these declarations that France Télécom was experiencing structural financial difficulties as reflected in its unbalanced balance sheet. Cash flow generation was proving insufficient to resolve the debt-related problems. The established inadequacy of the cash flow and undue optimism about the non-strategic asset disposals continued to have an impact on France Télécom's share price and on the rating of its debt (131). By asserting that the State would take the necessary decisions or appropriate steps, the Minister was making plain the State's commitment to doing whatever was necessary to resolve the Company's structural financing problems. That was, at any rate, how economic operators saw it.
(207)
The question how far these declarations can be attributed to the State arises only in relation to the July declaration. The Commission would point out in this connection that, in the economic context just described, the French financial newspaper of reference, Les Échos, met with the Minister responsible and asked him, not how he felt about the events of the day, but whether he had a message for the market. The Minister's reply to the journalist was therefore neither off the cuff nor an analysis of past events. It was, rather, a reflection of the choice made by the Minister and, behind him, the Government to send a clear message to every market player. The Minister was therefore making precise declarations on behalf of the State and the Government (against the background of a series of articles on the new Government's economic policy priorities). In such circumstances, the interview given by the Minister is proof beyond doubt of the Government's resolve to support France Télécom and therefore constitutes an act imputable to the State. In any event, as indicated in paragraph 205, the remarks reported in the press were subsequently neither contradicted or amended by the Minister nor denied by the Government.
(208)
The Commission considers that these public declarations are sufficiently clear, precise and firm for them to attest to the existence of a credible commitment on the part of the State. As far as their publication is concerned, the first declaration was published in a national daily newspaper aimed at an audience of business people and financiers. What is more, the Minister's replies were clearly addressed not only to the journalist but also to the whole world of finance and industry. The first question put by the journalist is highly revealing: ‘France Télécom's share price is highly volatile. You are the majority shareholder in the company, do you have a message to convey?’. The Minister could not therefore have been unaware that he was sending a message to the Company and its employees as well as to the Company's other shareholders, banks, creditors and competitors. The other declarations were, for their part, published in press releases of the Ministry of Economic Affairs and Finance intended by their very nature to be disseminated as widely as possible.
(209)
On the issue of clarity, the Commission considers that as early as July 2002 the message was clear, although the State's means of intervention, i.e. the detailed arrangements for carrying out its commitment, were as yet unspecified: ‘I feel responsible for the State's financial interests. The State shareholder will behave like a prudent investor and if France Télécom were to be in difficulty, then we would take appropriate steps’ and, a bit later, ‘I am simply saying that we shall take appropriate measures when the time comes. If it is necessary’. It is clear from this passage, firstly, that the State claims to be acting like a prudent majority shareholder and, secondly, that it will take steps to alleviate France Télécom's difficulties. The clarity of the majority shareholder's commitment can scarcely be doubted inasmuch as it is reiterated a few lines further down: ‘I repeat, if France Télécom had any financing problems, which is not the case today, the State would take whatever decisions were necessary to overcome them’. The Commission would stress that the clarity of the State's commitment did not diminish with each successive declaration.
(210)
As to the firmness of the commitment, the Commission is not convinced that the phrases ‘if France Télécom were to be in difficulty’ or ‘if France Télécom had any financing problems’ (July declarations) and ‘if necessary’ (September and October press releases) can be interpreted as provisos having the effect of suspending the effectiveness of the State's commitment. At the time of the first declaration, France Télécom had already seen its credit rating fall strongly, its debt came to approximately EUR 70 billion, and the market knew that it had to meet certain important maturities at the end of 2002/beginning of 2003 and to cover a substantial financing need before the end of 2003. The financing problems were therefore not unexpected, given the general financial context. The situation had not changed by the time the other declarations were published. Consequently, the phrases in question cannot be regarded as conditions precedent when the condition precedent is, by definition, a future, uncertain event (132). Moreover, the declarations in question do not contain any reservation as to prior notification to the Commission. Contrary to what the French authorities maintain, their assertion that the State claims to act like a prudent investor (such a ‘precaution’ was, moreover, simply mentioned in July and December) cannot be considered a condition precedent to the State's commitment. There is nothing to show that the market had knowledge of any such condition. The only mention of the prudent investor concept is to be found in the Standard & Poor's press release of 12 July 2002, and then only as a quotation of the Minister's remarks; the interpretation of the Minister's remarks by the agency which follows the quotation is different (133). Nor is it taken up by the press releases of other rating agencies such as Moody's, which in any event see in the ministerial declarations an indication of the State's firm commitment to support France Télécom by whatever means. Affirming one's intention to behave like a prudent investor is not enough when it comes to complying with the rules on state aid, and in particular with the prudent private investor principle. Otherwise, all Member States would have to do in order to comply with the rules is maintain that they have complied with them, and the Commission's monitoring activity would be entirely superfluous. Moreover, it is not for the Member States to judge whether the prudent investor test has been met, but for the Commission under the watchful eye of the Community courts. Despite what they maintain, the French authorities do not seem to have behaved like a prudent investor (see point 5.5). France Télécom has, moreover, indicated that the phrase ‘appropriate steps’ does not mean a priori that the State has committed itself to adopting financial measures. The Commission would stress the clear contradiction in the French authorities' arguments. On the one hand, the State maintains that it will behave like a prudent investor. In view of the Company's financial situation, the financial analyses and the private shareholder resources, this suggests that the State intends to give France Télécom financial support (a change of management could by no means be considered sufficient, as was subsequently confirmed by the content of the Ambition 2005 plan). On the other hand, when the French authorities maintain that the measures are not financial, this suggests that they intended to act in their capacity as a public authority.
(211)
As to the French authorities' argument based on the Compagnie nationale Air France judgment (134), according to which the remarks at issue cannot imply a firm and unconditional commitment on the part of the State as they are not sufficiently precise, this argument is based on a confusion between the question of the date of the commitment and the assessment of that commitment in the light of the prudent private investor principle. As far as the date of the commitment is concerned, the Commission would point out that the case law does not rule out the possibility that a firm commitment may exist prior to all the precise implementing arrangements being known. On the other hand, what the Court of First Instance of the European Communities stresses is that a private investor in general would not take an irrevocable investment decision as long as the final details of the investment have not been fixed.
(212)
The other relevant circumstances surrounding the said declarations confirm the clarity and firmness of the Minister's message and the will of the State to commit itself in full knowledge of all the facts. Thus, in July 2002, the State did not simply issue public declarations; it also contacted the main market operators in order that they might act as go-betweens with investors (135). The urgency due to the Company's financial situation confirms the existence of a firm decision by the State to support France Télécom. During the first half of 2002, France Télécom saw its credit rating downgraded following publication of its 2001 annual accounts. The lowest point in the downgrading of France Télécom's credit rating was reached on 24 June 2002 when Moody's downgraded the Company's rating to just above that of junk bond, thereby making it very difficult for it to refinance its debt (136). This downgrading caused considerable concern on the financial markets about France Télécom's financial situation (and in particular about its capacity to refinance its EUR 15 billion debt falling due at the end of 2003), and the markets expected a reaction from the State designed to reassure them. These circumstances show, in the Commission's opinion, that the State had to act urgently to reassure the market and to prevent any further downgrading of France Télécom's credit rating to that of junk bond status, as this would have had a highly negative impact (137) on the Company's financial situation. The State thus retained this trust through successive declarations. In fact, the State's intervention had the effect of preventing any downgrading of the Company's credit rating to that of junk bond status, as is, moreover, clearly stated in S & P's press release of 12 July 2002, where the assurances provided by the State are hailed as being a key factor in France Télécom's not being reduced to junk bond status.
(213)
In conclusion, while each of these declarations taken separately might not suffice to prove the existence of a decision by the State to support France Télécom, taken together they do seem to suggest that such a decision exists (being embodied in the offer of the shareholder loan to France Télécom upfront of the State's participation in a future recapitalisation). Such was at all events the view taken by the markets. The firm character of that decision would be confirmed in the event of its being established that the declarations are binding under domestic law and are capable of placing the State's credibility on the line.
(214)
First of all, the Commission has studied the question whether, under domestic law, a private investor who has made the same declarations as the State would be obliged to keep his promises. In view of the fact that, in the present case, the investor is the State, the study of domestic law also included administrative law.
(215)
The Commission commissioned an expert report on the subject and it also received several reports from third parties. On the basis of this information, the Commission cannot rule out at this stage that the declarations in question may have binding force under French administrative, civil, commercial and criminal law (138), as well as under the law of the State of New York.
(216)
The main criticism levelled by the French authorities is that, under domestic law, unilateral commitments are the exception, and that letters of intent, which do not form a homogeneous category, are treated as equivalent to a unilateral commitment only in exceptional circumstances. But the question is not whether French law is unequivocal on this matter, but whether there is any basis in private law for concluding that there exists a unilateral commitment in circumstances such as those of the present case. The fact that there exists a usable body of case law of the Court of Cassation (139), of which the French authorities are trying simply to minimise the scope (140), is incontestable.
(217)
It is entirely likely that such repeated and concordant declarations, emanating as they do from the Minister responsible for managing the State's shareholdings and representing the Company's majority shareholder, will be considered credible by the market, and as a result they create an expectation on the part of the latter that the State will do everything necessary to resolve any financial difficulties that France Télécom may face. Any failure by the State to fulfil that expectation would have directly affected its reputation in its capacity as owner, shareholder or manager of companies, whether quoted or not, and in its capacity as issuer of bonds to finance the public debt (141). Thus, the declarations by the French Government, starting from those of July 2002, are the expression of a strategy based on the reputation of the State. This strategy consists in entering into credible commitments in the short and the long term. A majority shareholder in or an owner of companies (or, more generally, a manager) who does not conduct himself in the manner he had publicly announced and an issuer of bonds who does not keep his word risk logically, irrespective of any legal obligation, losing their reputation. This loss of reputation will involve almost certain economic costs for the same operator when he tries to borrow again on the capital markets (assuming he still finds someone prepared to grant him a loan) or when he acts as owner or manager of a company (142). In the present case, the majority shareholder is the French State. The French State is a major economic operator, active in the economy as owner, shareholder or, more generally, manager of a large number of public undertakings (143). It is also a major borrower on the capital markets with a view to financing its public debt (144). A loss of credibility would therefore have not negligible consequences both for its reputation as a major economic operator and issuer on the international markets and for its reputation as a major political actor.
(218)
Taken as a whole, these factors may be deemed to actually endanger state resources (either by incurring the State's responsibility vis-à-vis investors, or by increasing the cost of the State's future transactions). The argument to the effect that the French authorities' declarations as from July 2002 are aid is therefore innovative, but probably not without foundation.
(219)
Nevertheless, the Commission is not of the opinion that it can establish irrefutably the existence of aid on this basis. It does, on the other hand, consider that it can demonstrate the presence of aid elements in a more conventional manner taking as a basis the December 2002 measures which were the subject of the notification. In this respect, it is sufficient to establish that the prior declarations had a real impact on the perception of the markets in December, without having to characterise these prior declarations as being in themselves state aid.
(220)
In the present case, the market's reaction and the comments by financial analysts confirm that the market regarded these declarations as a credible strategy of commitment by the State to support France Télécom.
(221)
As to the market's reaction, NERA states that the event study carried out of the announcement of 12 July 2002 shows that that announcement led to an abnormal and not negligible increase in the value of France Télécom's shares and bonds. Thus, compared with a set of telecom indexes representative of the market, France Télécom's share price rose by between 37,8 % and 43,8 %. The abnormal increase in bond prices amounted, for its part, to between 3,2 % and 9,7 %. This reaction implies that the market believed that, by the announcement, the State was committing itself to offering France Télécom greater support (145) and that the market placed great store by the announcement. As to the comments by financial analysts, Deutsche Bank, for example, mentioned several times in a report published on 22 July 2002 that the State's support was decisive in preventing a crisis (146) and that the market was convinced, in the light of the Government's declarations, of the state support that would be provided by the Government to France Télécom (147) (even if the market did query the scope and modalities of that support) (148). Similarly, S & P considered the Government's declarations to be credible to the point of influencing the Company's credit rating. On 12 July, S & P thus downgraded France Télécom's rating to BBB- but maintained its investment-grade rating with a stable outlook (149), stating that ‘The French state - which owns 55 % of France Télécom - has clearly indicated to Standard & Poor's that it will behave as an aware investor and would take appropriate steps if France Télécom were to face any difficulties … Indeed S & P believes that the company could face certain difficulties refinancing its debt obligations coming due in 2003. Nevertheless, the State's indication underpins France Télécom's investment-grade credit quality’ (150). The fact that the State's support, proclaimed as from July 2002, was credible to the point of enabling France Télécom's credit rating to remain at investment-grade quality is also corroborated by France Télécom itself (151). This evidence confirms the Commission's opinion that the French Government was obliged, in order to keep its reputation intact on the financial markets, to respect the promises it had made (there is nothing on file to suggest that this was not always the Government's intention).
(222)
The Commission notes that the declarations had a major impact on the market. A study of the comments and documents submitted by the French authorities and of the available parliamentary debates shows that the State's declarations helped to restore the financial markets' confidence (152). In fact, ever since S & P's press release of 13 July 2002, the rating agencies were all agreed that the support shown by the State since July 2002 was decisive in maintaining France Télécom's investment-grade credit quality. The maintenance of France Télécom's investment-grade credit quality thus enabled the Company to avoid additional financial costs (153) on the funds it had already borrowed owing to the existence of step-up clauses (154) in some bond issues and on future borrowings. The maintenance of investment-grade rating enabled the Company, moreover, to put its finances back on to a sound footing through a recapitalisation operation carried out under optimum conditions in March/April 2003. Back in September 2002, one of the conditions imposed by the banks for their participation in the operation was ‘the maintenance of at least the current ratings {investment-grade quality} of the company's long-term debt by the Moody's and Standard & Poor's rating agencies; this condition will be included in the guarantee and investment contract’ (155). In so far as the shareholder loan is made by way of an upfront prepayment by the State towards France Télécom's recapitalisation, it follows that it cannot be examined without regard to the effects of these declarations. A downgrading of France Télécom's credit rating would have rendered any shareholder loan improbable or at the very least more costly.
(223)
The Commission would note that, inasmuch as they seek to show that the shareholder loan taken in isolation and disregarding the events preceding it satisfies the prudent investor test, the French authorities' comments might seem at first sight not to be altogether without foundation. However, this impression fades after more detailed analysis. The Commission would stress that, for the reasons given below, the decision to act upfront of the capital increase operation by granting a shareholder loan cannot be analysed independently of the above-mentioned declarations.
(224)
In this connection, the Commission would recall that the State had declared in July 2002 that it wished to take the necessary steps to enable the Company to overcome its financing difficulties. The French authorities remained vague initially about the arrangements for putting these declarations into practice. They then fleshed them out in successive statements by announcing, in September, the decision to participate in an operation to strengthen the capital base, by announcing, in December, the provision to the Company of a EUR 9 billion credit line, and by putting in place the necessary conditions for that provision.
(225)
The fact that the measures notified in December (including the decision to act upfront of a future recapitalisation by granting a shareholder loan), viewed separately, may create the illusion of perfectly rational transactions does not alter the fact that the behaviour of economic operators in December was clearly influenced by the actions and declarations made by the State beforehand, notably from July 2002, signalling the State's intention to mitigate the Company's financing problems. The Commission would point out in this connection that the State's declarations were decisive in maintaining the Company's investment-grade credit quality and that a junk bond rating would have made the shareholder loan more unlikely and certainly much more costly.
(226)
In this sense, the State's decision to act upfront of the Company's recapitalisation by granting a credit line ultimately constitutes a concretisation of the State's announcements.
(227)
The Commission would stress first of all that it is aware that the operation to recapitalise France Télécom carried out in April 2003 was a success and that the shareholder loan was never actually made. It would point out also that, in applying the prudent private investor test, the Commission generally enquires whether a prudent private investor of a size comparable to that of the public investor would have acted in a similar manner to the public investor. According to well established case law, the analysis of the prudent private investor principle is based on the information the investor has at his disposal at the time he takes his investment decision. The success of the operation in March-April 2003 cannot therefore be taken into account in assessing the State's conduct in December 2002. The Commission would stress, moreover, that, in applying the concomitance criterion it cannot base the assessment of the State's conduct on the conduct of other economic operators in so far as their conduct and the market were influenced by the State's declarations. The State's declarations, made in July and then repeated, to the effect that it would take the necessary steps to enable the Company to overcome its financing difficulties distort the concomitance test in so far as private investors cannot be considered to have made up their minds on the sole basis of the Company's situation. This holds true irrespective of whether those declarations contain state aid or not (156). What is more, the application of the principle of the prudent private investor in a market economy cannot be based on the market situation in December, but must logically be based on the situation of a market uncontaminated by prior declarations and interventions.
(228)
It seems logical, therefore, to examine the decisions in question from the angle of the situation prior to July 2002. If the decisions in question are thus analysed in the context of the situation prior to July 2002, it would appear that they do not satisfy the prudent private investor test. As already indicated, in 2002 France Télécom was operating in a difficult economic context. The debt-reduction plan announced by the management and centred on a major assets sale had been judged unworkable by the Moody's rating agency, which had downgraded the Company's credit rating by two notches on 24 June 2002 (157). As a result, France Télécom had then lost the markets' confidence. At that time, the Government had not yet taken any steps to improve the Company's operation and results (158) or commissioned any in-depth audit. In particular, the Government had not yet appointed a new management team and no recovery plan was yet in place or even on the drawing board (159). The support announced by the French Government beginning with its July 2002 declarations was therefore in the nature of a unilateral move by the State at a time when the market was somewhat sceptical about the Company's capacity to redress its financial situation (160) and when financial analysts were recommending caution over participating in a possible operation to strengthen the Company's capital base (161).
(229)
In the light of the Company's financial situation as described in this Decision, the overall context of loss of market confidence at the time and the lack of any credible and realistic debt-reduction plan until December, the Commission considers it improbable that a private investor would, from July 2002, have made declarations similar to those made by the French Government, likely as they were, from a purely economic point of view, to seriously place his credibility and reputation on the line and, from a legal point of view, to even oblige him from that date to support the Company financially come what may. In so doing, any investor would have assumed a very considerable risk vis-à-vis the Company, without being indemnified by the Company or its other shareholders and without any compensation being envisaged in return for his support. It is likely that even a reference shareholder in possession of the same information on the Company's economic situation as that which the French authorities had at their disposal at the time (162) would not have taken such a step without first carrying out a thorough audit of the Company's financial situation (163) and taking the measures necessary to ensure its recovery in order to gain a fairly precise idea of the risk he was about to take and of the associated remuneration prospects. Such a reference shareholder would in any case have needed the financial markets' help in setting the company to rights, and the markets did not at that time seem prepared to invest in or grant much in the way of credit to France Télécom. It is unlikely that a prudent private investor in the same position as the French State would, in the light of France Télécom's economic situation and the unavailability of any clear, comprehensive information thereon, have made any declarations of support for the Company in July 2002. It is even less likely that he would have granted a shareholder loan, taking on himself alone a very substantial financial risk. The argument advanced by France Télécom and the French authorities to the effect that ‘it may be objected that any show of support by the State would have an implicit guarantee effect in view of the “unlimited” means at the State's disposal’, which ‘would be tantamount to making it impossible to apply the principle of the prudent private investor - whose resources are always limited - and to treating the conduct of the State shareholder differently from that of the private investor’ (164), and that this would prevent any public declaration by the State, cannot be accepted by the Commission. There is no question of preventing the State from behaving like a prudent private investor and making, if necessary, declarations of support which a prudent private investor would make (such as declaring its intention to take part in a possible recapitalisation scheme where the operation is based on a serious and credible recovery plan) or of obliging the State to notify any declaration. The Commission would point out that an explicit reservation to the effect that any subsequent intervention would be notified in advance to the Commission and implemented only after it had been approved would render the declarations conditional and would thus make it possible to examine the subsequent intervention by the State on the basis of the market situation existing at the time of its adoption.
(230)
It follows from all of the above considerations that the test of the prudent private investor in a market economy is not satisfied. Consequently, the advantage conferred on France Télécom by the proposal to grant a shareholder loan - examined in the light of the prior declarations and interventions of the French authorities - constitutes state aid, even if the scale of the advantage is difficult to calculate.
9. COMPATIBILITY OF THE AID
(231)
As to the compatibility of the aid in question, the Commission would point out first of all that its analysis as set out in paragraphs 122 and 123 of the opening decision is still applicable in the present case. Consequently, the aid's compatibility with the common market may be analysed in accordance with the criteria applied in the Guidelines.
(232)
The Commission would observe that France Télécom was a firm in difficulty within the meaning of the guidelines, as can be seen from Table 10. More particularly, a firm is regarded as being in difficulty where ‘more than half of its registered capital has disappeared and more than one quarter of that capital has been lost over the preceding 12 months (165)’.
Table 10
France Télécom
Consolidated balance sheet
(Amounts in EUR million)(1998 data, EUR 1 = FRF 6,55957)
Financial year ended 31 December
LIABILITIES
2000
2001
2002
Share capital
4 615
4 615
4 761
Additional paid-in capital
24 228
24 228
24 750
Reserves
2 748
4 682
-5 434
Group's share of net result
3 660
-8 280
-20 736
Conversion reserve
59
844
3 315
Own shares
-2 153
-5 002
-9 977
Shareholders' equity
33 157
21 087
9 951
Minority interests
2 036
8 101
9 780
Non-reimbursable funds and the like
-
-
-
Long- and medium-term debt
30 547
54 543
46 898
Other long-term liabilities
5 220
8 663
14 978
Total long-term liabilities
35 767
63 206
61 876
Current portion of long- and medium-term debt
7 542
1 596
13 495
Bank overdrafts and other short-term borrowings
25 165
11 365
10 490
Trade accounts payable
7 618
8 631
8 503
Accrued expenses and other payables
7 729
7 259
7 395
Other current liabilities
8 113
2 481
1 712
Deferred income taxes
512
374
87
Deferred income
1 946
3 258
3 200
Total current liabilities
58 625
34 964
44 882
Total liabilities
129 585
127 358
106 587
Source: France Télécom Annual Reports 1999, 2002, 2003.
(233)
According to the letter of the Guidelines, which refer to the registered capital, the relevant indicators for the purposes of characterising France Télécom as a firm in difficulty do not include all the elements constituting the own capital but are limited to the share capital and the additional paid-in capital.
(234)
On 31 December 2001, according to this definition, the registered capital came to EUR 28,8 billion (corresponding to EUR 4,6 billion of share capital plus EUR 24,2 billion of additional paid-in capital).
(235)
On 31 December 2002, the registered capital came to EUR 29,5 billion (corresponding to EUR 4,8 billion of share capital plus EUR 24,7 billion of additional paid-in capital). For the 2002 financial year, the group's net loss came to EUR 20,7 billion, which corresponds to a 70 % loss of registered capital (EUR 20,7 billion/EUR 29,5 billion). If account were taken of the negative reserves of EUR 8,9 billion, the result would be a loss of the entire registered capital.
(236)
Hence it must be concluded that France Télécom was a firm in difficulty within the meaning of the Guidelines.
(237)
This finding is borne out by an analysis of point 6 of the Guidelines. This point mentions a number of signs illustrating the financial difficulties of a firm. They include qualitative criteria such as increasing losses, diminishing turnover, declining cash flow, mounting debt, rising interest charges and falling or nil net asset value (166).
(238)
As to the French authorities' arguments concerning the growth in the operational elements, the Commission would point out that a company's balance sheet, operating results and future cash flow forecasts are elements forming an integral part of a company's assessment. The debt in a company's balance sheet has an effect on its future cash flow even if it is due to past events. The Commission would stress that, although it is aware of the growth in the Company's turnover and of the fact that its cash flow was both high and growing faster than its turnover, it cannot ignore the real market position of a company burdened with a colossal debt. Nor can it dissociate the strategic decisions taken by a company from its operational decisions. Thus, contrary to what the French authorities maintain, the Company's cash flow growth cannot be viewed in isolation. The above-mentioned HSBC report states, moreover, that, even with the TOP plan, the Company's financing requirement would be for EUR 21,9 billion in 2004 and 2005; without the TOP plan, the requirement would be for EUR 33 billion over the same period.
Table 11
France Télécom
Consolidated balance sheet
(Amounts in EUR million)(1998 data, EUR 1 = FRF 6,55957)
2001
2002
Turnover
43 026
46 630
Cost of services and products sold
(17 619)
(18 558)
Selling and administrative expenses
(12 520)
(12 579)
Research and development expenses
(567)
(576)
Operating income/loss before amortisation of fixed assets and of actuarial adjustments in the early retirement plan (EBITDA)
12 320
14 917
Operating income/loss (EBIT)
5 200
6 808
Interest expenses, net (excluding perpetual bonds redeemable for shares - TDIRA)
(3 847)
(4 041)
Interest expenses on TDIRA
-
-
Foreign exchange gain/loss, net
(337)
136
Discounting of early retirement plan
(229)
(216)
Current income/loss from integrated companies
787
2 687
Other non-operating income (expense), net
(5 904)
(12 849)
Corporation tax
2 932
(2 499)
Employee profit-sharing
(131)
(148)
Net income/loss from integrated companies
(2 316)
(12 809)
Equity in net income/loss of affiliates
(890)
(367)
Goodwill amortisation
(2 531)
(2 352)
Exceptional goodwill amortisation
(3 257)
(5 378)
Net income/loss of the consolidated group
(8 994)
(20 906)
Minority interests
714
170
Résultat net (Part du groupe)
(8 280)
(20 736)
Source: Rapports Annuels France Telecom 2001, 2002.
(239)
Analysis of the various criteria mentioned in paragraph 237 shows that France Télécom was incurring growing losses in 2001 and 2002. Moreover, France Télécom's net financial liabilities (see Table 12) came to EUR 63,5 billion on 31 December 2001, EUR 69,7 billion on 30 June 2002 and EUR 68,0 billion on 31 December 2002.
Table 12
(EUR billion)
31.12.2001
30.6.2002
31.12.2002
Total long-term liabilities
63,2
64,3
61,8
Current portion of liabilities
1,6
9,2
13,5
Bank overdrafts and other short-term borrowings
11,4
13,8
10,5
Gross liabilities
76,2
87,3
85,8
Marketable securities
(1,1)
(0,1)
(-)
Cash
(2,9)
(2,3)
(2,8)
Other long-term liabilities
(8,7)
(15,2)
(15,0)
Net financial liabilities
63,5
69,7
68,0
Source: France Télécom annual reports and consolidated balance sheets as at 30 June 2002
(240)
The Commission would also stress the growth in net interest expenses from EUR 2 billion in 2000 to EUR 3,8 billion in 2001 and EUR 4 billion in 2002.
(241)
The net asset value which corresponds to the share capital value fell from EUR 33,2 billion on 31 December 2000 to EUR 21 billion on 31 December 2001 and reached minus EUR 10 billion on 31 December 2002.
(242)
It follows, therefore, that, of the six criteria mentioned in point 6 of the Guidelines as being signs of a company's poor health, four are satisfied.
(243)
Finally, the Company's financial difficulties are confirmed by the difficulties it had in 2002 in refinancing itself on suitable terms on the capital market. Contrary to what the French authorities maintain, France Télécom did not have access to the financial markets in 2002 on suitable terms prior to the series of declarations of support by the State from July until December of that year (167).
(244)
The difficulties which France Télécom would have had in refinancing itself on suitable terms without the State's support are illustrated by the financial analysts' reports.
(245)
For example, one analyst has stated that, in July 2002, with a Baa3 rating the Company would have had difficulty solving its debt problem through the acquisition of new capital: ‘FT's Baa3 rating meant that it was hard to say who would buy a potential bond issue. The negative outlook increases the possibility of the company becoming a fallen angel, if it is unable to solve its debt problem’ (168).
(246)
A report by JP Morgan dated 2 December 2002 also seems to confirm that, without the State's support, France Télécom would not have been capable of obtaining fresh capital on the market in order to refinance its debt. The report states: ‘We continue to view FT's risk/reward profile as unattractive pending the outcome of a strategy review. … Although we see significant scope for FT to cut costs and deliver a compelling yield and even though the CEO has strong track record execution, the government role in giving FT the flexibility it requires is pivotal. In the meantime, liquidity risk remains and in our view, a right issue is a matter of when not if. … The government's role will again be pivotal in refinancing and reducing this debt. However it is liquidity or refinancing risk that is the near-term focus of FT and rating agencies alike, with a daunting refinancing schedule ahead in 2003. […] This would be impossible without government intervention - even FT acknowledged this in its Q3 conference call’ (emphasis added).
(247)
Two reports by Goldman Sachs and SG Equity Research confirm that it was only after the series of declarations by the State that the capital market allowed France Télécom to refinance itself on suitable terms. Global Equity Research stated on 20 February 2003 that: ‘[the] immediate liquidity issues are solved: since the government's upfront prepayment of its €15bn equity offering in the form of a €9bn standby facility, FT has been able to re-access the debt capital markets to solve its immediate liquidity challenges’.
(248)
The financial analysts' views are borne out by statements by the Company's then CEO, Mr Bon, as reported in several press articles (169), and by the French authorities themselves at the time of their December 2002 notification (170). Although the French authorities maintain that the opinion of France Télécom's former CEO is irrelevant in view of the circumstances in which it was formulated, it nevertheless remains that that opinion was borne out by the new CEO appointed in October 2002 when, at his hearing on 5 December 2002 before the Senate finance committee, he also stated that the group was in a worrying situation: ‘Despite being faced with huge debts, the company did not seem to have woken up to the fact that its credit rating was being downgraded, that it no longer had access to the capital markets ...’ (171).
(249)
Similarly, the documents furnished by the French authorities to illustrate France Télécom's access to the markets are unconvincing. The exchange offers proposed by […] and […] to replace the short-term bonds by longer-term ones do not bear out the French authorities' argument as to France Télécom's access to the capital market. The exchange offer by […], which was dated July 2002 and which is said to have been made to France Télécom on the 17th of that month, thus contains only preliminary remarks on a possible exchange transaction (172) and mentions only an indicative price of Euribor + 380 base points and a coupon of 8,50 % (173). The September 2002 offer by […] was not signed by the parties and contains no refinancing rate. In the Commission's opinion, inasmuch as the offers were not formalised and only one of the two offers mentions an indicative rate, which was higher than the average of France Télécom's issue rates in 2002 (174), these two offers are irrelevant. At all events, the offers seem to postdate the State's explicit declarations of support of July 2002 and hence cannot serve as evidence that France Télécom had normal access to the capital market.
(250)
As to the various operations mentioned by the French authorities (175), and in particular the issuance by France Télécom of ordinary bonds and mandatory convertible bonds (‘ORA’) in the course of 2002 (176), the Commission would point out that they likewise do not prove that France Télécom had access to the market on suitable terms. The total amount of the issues is far below (177) the average for France Télécom over the period 1997-2003 (178). Only the ORA issue is of any significant size (179), but this is precisely an instrument that is used where the risk is high and the cost of an ordinary bond issue would be too great.
(251)
As to the French authorities' assertion that they preferred to resort to a syndicated loan than to the bond market for the purpose of refinancing France Télécom, this is not indicative of the Company's capacity to refinance itself on suitable terms. The syndicated loan to which the French authorities refer in their comments of 22 January 2004 dates from 14 February 2002, that is to say, from before the downgrading of France Télécom's credit rating by the rating agencies. On the other hand, the use for several months of this short-term credit instrument instead of a longer-term bond issue which would have made it possible to refinance part of the Company's debt (180) seems rather to confirm that France Télécom's access to the capital market was not easy. This situation was confirmed, moreover, by the French authorities in their comments of 22 January 2004, when they stated that recourse to the syndicated loan was less costly for France Télécom than access to the bond market.
(252)
In the light of all the above considerations, the Commission is of the opinion that France Télécom must be considered, during the first half of 2002, to have been a firm in difficulty within the meaning of the Guidelines (181).
(253)
However, the measures at issue cannot be characterised as aid for rescuing and restructuring firms in difficulty as they do not fulfil the conditions for authorisation laid down in the Guidelines. The Commission would point out first of all here that the French authorities have not advanced any argument along these lines and have never asserted that the measures at issue had as their purpose the rescuing and restructuring of France Télécom. On the contrary, the French authorities have always denied that France Télécom should be characterised as a firm in difficulty and have stressed the Company's good operational health.
(254)
The measures at issue cannot constitute rescue aid. The Guidelines provide that the loan must be remunerated, which is not the case here. Similarly, the aid must be justified by serious social reasons, but the Commission has no evidence in its possession to suggest that, in the absence of such aid, a situation of social distress would have been brought about. In so far as its assets were healthy from an operational standpoint, had France Télécom been obliged to dispose of assets to meet its financing requirements there would in all probability have been no serious social difficulties. The Guidelines also provide that rescue aid must be restricted to the amount needed to keep the firm in business for the period during which the aid is authorised. In the present case, however, the Commission has seen no evidence to the effect that the State's commitment to support France Télécom was limited to keeping the Company in business. Moreover, the French authorities have not formally notified the measures in question as rescue aid, or affirmed that the measures are aimed at rescuing France Télécom. Rescue aid must be repaid within 12 months of the date of the last payment; however, repayment in France Télécom shares cannot constitute repayment within the meaning of the Guidelines, being instead a mere capital injection as there is no guarantee that the shares' nominal value will correspond to the aid amount. The Guidelines provide, furthermore, that rescue aid may be granted for a maximum period of six months. Inasmuch, therefore, as the credit line was opened for a period of 18 months, the period authorised has been exceeded.
(255)
Nor can the measures at issue constitute restructuring aid. In response to a request made by the Commission at the time of the opening decision, the French authorities submitted the Ambition 2005 plan. A perusal of the plan has confirmed that France Télécom was entering upon a phase of in-depth restructuring, both industrially and financially. The Commission accordingly considers that the financial measures granted by the French authorities in support of France Télécom were capable of constituting restructuring aid within the meaning of the Guidelines. That being so, the Commission cannot consider the measures compatible with the common market under Article 87(3)(c) of the Treaty and under the Guidelines. According to the Guidelines, ‘aid for restructuring raises particular competition concerns’. Consequently, such aid may be granted ‘only if strict criteria are met, and if it is certain that any distortions of competition will be offset by the benefits flowing from the firm's survival … and, where appropriate, there are adequate compensatory measures in favour of competitors’. In the present case, however, the information furnished by the French authorities is silent on this point, and the authorities have not transmitted to the Commission certain information referred to in Annex I to the Guidelines, such as a detailed description of the aid (proposing compensatory measures) and market studies, which is essential if the Commission is to be able to rule on the scale of the distortions of competition involved and hence of the compensatory measures needed in order to verify the compatibility of the aid.
(256)
The Commission concludes that the financial measures granted by the French authorities in support of France Télécom are incompatible with the common market within the meaning of the Treaty's Article 87(3)(c) and of the Guidelines.
10. RECOVERY OF THE AID
(257)
In the light of the above, the shareholder loan of December 2002 constitutes state aid incompatible with the common market. Article 14 of Regulation (EC) No 659/1999 requires, therefore, in principle that the Commission should demand its recovery.
(258)
A precondition for carrying out that obligation is either that the amount of the aid should be fairly precisely quantified in the Decision or - if that is not possible - that the parameters should be included whereby the Member State, in cooperation with the Commission, might subsequently carry out such a calculation.
(259)
In this respect, the Commission is not able at this stage to precisely quantify the aid in question.
(260)
While it is true that the analysis based on the market situation before the July 2002 declarations suggests the existence of a considerable advantage conferred on France Télécom, the Commission does not consider it appropriate to rely on this factor alone in quantifying the aid. Although reference to the market situation before the July 2002 declarations makes it possible to factor in the effect on the markets of the prior declarations of the French authorities, it does not make it possible to isolate that effect from any other effects of events such as the change of France Télécom's management or the Ambition 2005 plan. Such an assessment offers, therefore, only a ‘gross’ view which is probably not strictly equivalent to the advantage enjoyed by France Télécom.
(261)
Despite all its efforts, the Commission has been unable to arrive at a reasonable assessment of the notified measures' ‘net’ financial impact, which ought to be established on the basis of a theoretical calculation isolating the effects of the declarations and actions attributable to the State from any other event which may have exerted an influence on France Télécom's situation or on the perception of that situation by the markets. Nor does it seem possible to incorporate in the Decision calculation parameters which are sufficiently precise to be able to carry out the final calculation during the Decision's implementing phase. In these particular circumstances, respect for the Member State's rights of defence might constitute an obstacle to recovery pursuant to Article 14(1) of Regulation (EC) No 659/1999, according to which ‘the Commission shall not require recovery of the aid if this would be contrary to a general principle of Community law’.
(262)
This conclusion also seems to follow from the principle of legitimate expectation. Although France has not presented to the Commission any argument based on the existence of a legitimate expectation on the part of the aid recipient, it follows from the case law of the Court of Justice (182) that the Commission is required to take automatically into consideration any exceptional circumstances which justify, in accordance with Article 14(1) of Regulation (EC) No 659/1999, its refraining from ordering the recovery of unlawfully granted aid where such recovery is contrary to a general principle of Community law, such as respect for the legitimate expectations of the recipients.
(263)
The Commission has taken the Government's declarations into account in its assessment of the compliance of the measure at issue with the state aid rules. Viewed in isolation, the shareholder loan proposal would probably have been considered not to constitute aid under the Treaty. However, the Commission has come to the conclusion that the declarations had the effect of restoring confidence to the market as far as the Company was concerned, thereby ruling out the application of the prudent private investor principle and turning the shareholder loan proposal into the concretisation of the aid granted to France Télécom. The Commission recognises that this is the first time it has had to examine whether this type of conduct constitutes aid. In so far as the aid depends, as a result, on conduct which preceded the notification of the shareholder loan proposal, a diligent operator could have had confidence in the lawfulness of the conduct of the Member State concerned, which, for its part, had duly notified the loan proposal. As Advocate General Darmon stated in his Opinion in Case C 5/89 (183), ‘the doubts with which some undertakings may be assailed, when faced with “atypical” forms of aid, as to whether notification is necessary should not be made light of’.
(264)
In conclusion, the Commission finds that France Télécom could legitimately have confidence in France's conduct not constituting state aid. In the light of the above, the Commission considers that, in the present case, ordering the aid's recovery would be contrary to the general principles of Community law.
11. CONCLUSIONS
(265)
The Commission finds that, placed in the context of the declarations made from July 2002, the shareholder loan granted by France to France Télécom in December 2002 in the form of a EUR 9 billion credit line constitutes state aid,
HAS ADOPTED THIS DECISION:
Article 1
Placed in the context of the declarations made from July 2002, the shareholder loan granted by France to France Télécom in December 2002 in the form of a EUR 9 billion credit line constitutes state aid incompatible with the common market.
Article 2
The aid referred to in Article 1 does not have to be recovered.
Article 3
This Decision is addressed to the French Republic.
Done at Brussels, 2 August 2004 | [
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COMMISSION REGULATION (EEC) No 910/91 of 11 April 1991 on the sale by the procedure laid down in Regulation (EEC) No 2539/84 of beef held by certain intervention agencies and intended for export to Brazil and amending Regulation (EEC) No 569/88
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No No of 27 June 1968 on the common organization of the market in beef and veal (1), as last amended by Regulation (EEC) No 3577/90 (2), and in particular Article 7 (3) thereof,
Whereas Commission Regulation (EEC) No 2539/84 of 5 September 1984 laying down detailed rules for certain sales of frozen beef held by the intervention agencies (3), as amended by Regulation (EEC) No 1809/87 (4), provides for the possibility of applying a two-stage procedure when selling beef from intervention stocks; whereas Commission Regulation (EEC) No 2824/85 of 9 October 1985 laying down detailed rules for the sale of frozen boned beef from intervention stocks for export either in the same state or after cutting and/or repacking (5) provides for repackaging under certain conditions;
Whereas certain intervention agencies hold large stocks of intervention meat; whereas an extension of the period of storage for the meat bought in should be avoided on account of the ensuing high costs; whereas, in view of the supply needs in Brazil, part of that meat should be put up for sale in accordance with Regulations (EEC) No 2539/84 and (EEC) No 2824/85 in order to be imported into that country;
Whereas, owing to Brazil's relatively limited port capacity, the time limit for taking over from intervention stocks should be extended by one month; whereas, in view of the urgency and the specific nature of the operation and of the need for controls, special detailed rules must be laid down in particular as regards the minimum quantity which may be purchased;
Whereas quarters from intervention stocks may in certain cases have been handled a number of times; whereas, in order to help with the presentation and marketing of such meat, its repackaging should be authorized, subject to the observance of precise conditions;
Whereas it is necessary to lay down a time limit for export of the said meat; whereas this time limit should be fixed taking into account Article 5 (b) of Commission Regulation (EEC) No 2377/80 of 4 September 1980 on special detailed rules for the application of the system of import and export licences in the beef and veal sector (6), as last amended by Regulation (EEC) No 625/91 (7);
Whereas, in order to ensure that beef sold is exported to the intended destination, the lodging of security, as specified in Article 5 (a) of Regulation (EEC) No 2539/84, should be required; whereas the release of that security must be subject to presentation of written evidence that the meat in question has been taken over on-the-spot by 'Compania Nacional de Apastecimento (CNA)' acting on behalf of the Brazilian Government;
Whereas products held by intervention agencies and intended for export are subject to the provision of Commission Regulation (EEC) No 569/88 (8), as last amended by Regulation (EEC) No 879/91 (9); whereas the Annex to the said Regulation setting out the entries to be made should be expanded;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION: Article 1
1. A sale shall be organized of approximately:
- 20 000 tonnes of boneless beef held by the Irish intervention agency and bought in before 1 March 1991,
- 10 000 tonnes of bone-in beef held by the Italian intervention agency and bought in before 1 March 1991,
- 60 000 tonnes of bone-in beef held by the German intervention agency and bought in before 1 March 1991,
- 10 000 tonnes of bone-in beef held by the French intervention agency and bought in before 1 March 1991.
2. This meat must be imported into Brazil.
3. The meat mentioned in paragraph 1 has been bought in pursuant to Regulation (EEC) No 859/89 (10).
4. Subject to the provisions of this Regulation, the sale shall take place in accordance with the provisions of Regulations (EEC) No 2539/84 and (EEC) No 2824/85.
The provisions of Commission Regulation (EEC) No 985/81 (11) shall not apply to this sale. However, the competent authorities may allow bone-in forequarters and hindquarters the packaging material of which is torn or soiled, to be placed in new packaging of the same type under their supervision before presentation for consignment at the customs office of departure.
5. The qualities and the minimum prices referred to in Article 3 (1) of Regulation (EEC) No 2539/84 shall be as set out in Annex I hereto.
6. An offer shall be valid only if:
- it relates to a total minimum quantity of 20 000 tonnes expressed in product weight,
- it is composed by 80 % of bone-in beef and 20 % of boneless beef, calculated in product weight,
- it relates to an equal weight of forequarters and hindquarters and offer a single price per tonne expressed in ecus for the whole quantity of bone-in beef specified in the offer,
- in respect of boneless beef it relates to a lot comprising all the cuts referred to in Annex II in the percentages stated therein and offer a single price per tonne expressed in ecus of the lot made upt in this fashion.
7. In order to meet the conditions provided for in paragraph 6, operators may submit part offers relating to bone-in beef in several Member States. If so, those offers shall contain the same price expressed in ecus.
Immediately after submitting tenders or purchase applications, operators shall send a copy thereof to the Commission of the European Communities, Division VI/D.2, 130 rue de la Loi, B-1049 Brussels (telex 220 37 B AGREC).
8. The successful tenderer as referred to in Article 10 (2) of Commission Regulation (EEC) No 2173/79 (12) shall be the tenderer who offers the highest weighted average price.
9. Intervention agencies shall only conclude contracts of sale upon verification, in conjunction with the Commission's Services, that the conditions referred to in paragraphs 6, 7 and 8 have been met.
10. Only those tenders shall be taken into consideration which reach the intervention agencies concerned not later than 12 noon on 18 April 1991.
11. Particulars of the qualities and the places where the products are stored may be obtained by interested parties at the addresses given in Annex III. Article 2
1. Nothwithstanding Article 6 of Regulation (EEC) No 2539/84, the time limit for taking over as defined therein shall be three months.
2. The products referred to in Article 1 must be exported within five months from the date of conclusion of the contract of sale. Article 3
1. The security provided for in Article 5 (1) of Regulation (EEC) No 2539/84 shall be ECU 30 per 100 kilograms.
2. The security provided for in Article 5 (2) (a) of Regulation (EEC) No 2539/84 shall be:
- ECU 300 per 100 kilograms of bone-in beef,
- ECU 500 per 100 kilograms of boneless beef.
3. The security referred to in paragraph 2 shall only be released where the evidence referred to in Article 18 of Regulation (EEC) No 569/88 and an attestation from the 'Companhia Nacional de Abastecimento (CNA)' (13) certifying that it has taken over the products concerned, are presented within 12 months of acceptance of the export declaration. Article 4
In part I of the Annex to Regulation (EEC) No 569/88, 'Products to be exported in the same state as that in which they were when removed from intervention stock' the following item and footnote are added:
'86. Commission Regulation (EEC) No 910/91 of 11 April 1991 on the sale by procedure laid down in Regulation (EEC) No 2539/84 of beef held by certain intervention agencies and intended for export to Brazil (86).
(86) OJ No L 91, 12. 4. 1991, p. 45.' Article 5 This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 April 1991. | [
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Council Decision
of 7 May 2002
on extension of the joint-undertaking status of Hochtemperatur-Kernkraftwerk GmbH (HKG)
(2002/355/Euratom)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Atomic Energy Community, and in particular Article 49 thereof,
Having regard to the proposal from the Commission,
Whereas:
(1) By Decision 74/295/Euratom(1), the Council established Hochtemperatur-Kernkraftwerk GmbH (hereinafter referred to as "HKG") as a joint undertaking for a period of 25 years as from 1 January 1974.
(2) The objectives of HKG were to construct, equip and operate a nuclear power station with a capacity of approximately 300 MWe at Uentrop (Unna district) in the Federal Republic of Germany.
(3) After being in operation from 1987 to 1988, the nuclear power station was finally shut down on 1 September 1989 as a result of technical and economic difficulties.
(4) Since that date the objective of HKG has been to implement a programme for decommissioning the nuclear power station up to the safe enclosure stage and, thereafter, to carry out a programme of surveillance of the enclosed nuclear installations.
(5) By Decision 92/547/Euratom of 16 November 1992 extending the status of Kernkraftwerklingen GmbH as a joint undertaking(2), the Council recognised that there was no equivalent to these programmes in the Community, that implementation thereof was important and that they provided useful experience for the nuclear industry and the future development of nuclear energy in the Community.
(6) In order to achieve its objective, HKG requested extension of its joint-undertaking status with effect from 1 January 1999.
(7) Extension of its joint-undertaking status should enable HKG to complete its decommissioning and surveillance programmes, notably by lightening the financial burden.
(8) Arrangements for financing HKG's activities have been agreed between the Federal Republic of Germany, the Land of North Rhine-Westphalia, HKG and its members for the period up to 31 December 2009.
(9) HKG's joint-undertaking status should therefore be extended for the same period,
HAS ADOPTED THIS DECISION:
Article 1
1. The joint-undertaking status, within the meaning of the Treaty, granted to Hochtemperatur-Kernkraftwerk GmbH (HKG) is hereby extended for eleven years with effect from 1 January 1999.
2. The objective of HKG shall be to implement a programme for decommissioning the nuclear power station located at Uentrop (Unna district) in the Federal Republic of Germany, up to the safe enclosure stage and, thereafter, to carry out a programme of surveillance of the enclosed nuclear installations.
Article 2
This Decision is addressed to the Member States and to HKG.
Done at Brussels, 7 May 2002. | [
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*****
COUNCIL REGULATION (EEC) No 1064/84
of 16 April 1984
on the granting of a calf birth premium in Greece, Ireland, Italy and Northern Ireland and on the granting of an additional national premium in Italy during the 1984/85 marketing year
THE COUNCIL OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 43 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament (1),
Whereas the intervention price applicable in the beef and veal sector has been fixed for the 1984/85 marketing year at a level lower than that resulting from the application of Article 6 of Council Regulation (EEC) No 805/68 of 27 June 1968 on the common organization of the market in beef and veal (1), as last amended by the 1979 Act of Accession; whereas Greece, Ireland, Italy and the United Kingdom (in respect of Northern Ireland only), which have applied in previous marketing years the system of a premium for the birth of calves provided for in Regulation (EEC) No 1201/82 (3), should continue to grant this premium;
Whereas this premium constitutes intervention on the internal market within the meaning of Article 3 of Council Regulation (EEC) No 729/70 of 21 April 1970 on the financing of the common agricultural policy (4), as last amended by Regulation (EEC) No 3509/80 (5);
Whereas Italy should be authorized to grant an additional national premium,
HAS ADOPTED THIS REGULATION:
Article 1
1. During the 1984/85 marketing year, Greece, Ireland, Italy and the United Kingdom (in respect of Northern Ireland only) shall be authorized to grant a premium for every calf born during that marketing year on their territories and still alive six months after its birth.
2. The amount of the said premium shall be 13 ECU payable by the EAGGF Guarantee Section. It shall be paid in a single instalment.
Article 2
During the 1984/85 marketing year, Italy shall be authorized to grant an additional national premium of not more than 19 ECU per calf still alive six months after its birth. The granting of this premium must not lead to any discrimination between livestock farmers.
Article 3
Detailed rules for implementing this Regulation shall be adopted in accordance with the procedure laid down in Article 27 of Regulation (EEC) No 805/68.
Article 4
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply with effect from 2 April 1984.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 16 April 1984. | [
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Commission Regulation (EC) No 936/2002
of 31 May 2002
fixing the minimum selling prices for butter and the maximum aid for cream, butter and concentrated butter for the 98th individual invitation to tender under the standing invitation to tender provided for in Regulation (EC) No 2571/97
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1255/1999 of 17 May 1999 on the common organisation of the market in milk and milk products(1), as last amended by Commission Regulation (EC) No 509/2002(2), and in particular Article 10 thereof,
Whereas:
(1) The intervention agencies are, pursuant to Commission Regulation (EC) No 2571/97 of 15 December 1997 on the sale of butter at reduced prices and the granting of aid for cream, butter and concentrated butter for use in the manufacture of pastry products, ice-cream and other foodstuffs(3), as last amended by Regulation (EC) No 635/2000(4), to sell by invitation to tender certain quantities of butter that they hold and to grant aid for cream, butter and concentrated butter. Article 18 of that Regulation stipulates that in the light of the tenders received in response to each individual invitation to tender a minimum selling price shall be fixed for butter and maximum aid shall be fixed for cream, butter and concentrated butter. It is further stipulated that the price or aid may vary according to the intended use of the butter, its fat content and the incorporation procedure, and that a decision may also be taken to make no award in response to the tenders submitted. The amount(s) of the processing securities must be fixed accordingly.
(2) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Milk and Milk Products,
HAS ADOPTED THIS REGULATION:
Article 1
The minimum selling prices and the maximum aid and processing securities applying for the 98th individual invitation to tender, under the standing invitation to tender provided for in Regulation (EC) No 2571/97, shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 1 June 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 31 May 2002. | [
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COMMISSION DECISION
of 14 August 1998
on aid granted by Greece to Olympic Airways
(notified under document number C(1998) 2423)
(Only the Greek text is authentic)
(Text with EEA relevance)
(1999/332/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 93(2) thereof,
Having regard to the Agreement on the European Economic Area, and in particular point (a) of Article 62(1) thereof,
Having given the parties concerned notice(1), in accordance with the provisions of the abovementioned Articles, to submit their comments, and having regard to those comments,
Whereas:
THE FACTS
I
(1) On 7 October 1994, the Commission adopted Decision 94/696/EC on the aid granted by Greece to Olympic Airways(2) (hereinafter "the initial Decison" according to which the aid granted and to be granted by Greece to Olympic Airways ("OA") is compatible with the common market and the Agreement on the European Economic Area ("the EEA Agreement") by virtue of Article 92(3)(c) of the Treaty and of Article 61(3)(c) of the EEA Agreement. The aid comprised:
(a) loan guarantees extended to the company until then pursuant to Article 6 of Greek Law No 96/75 of 26 June 1975;
(b) new loan guarantees totalling USD 378 million for loans to be contracted before 31 December 1997 for the purchase of new aircraft;
(c) easing of the undertaking's debt burden by GRD 427 billion;
(d) conversion of GRD 64 billion of the undertaking's debt to equity;
(e) a capital injection of GRD 54 billion in three instalments of GRD 19, 23 and 12 billion in 1995, 1996 and 1997 respectively.
(2) The last four of these five measures formed part of a restructuring and recapitalisation plan for OA which had initially been submitted to the Commission. On this basis, the Commission considered that the aid would facilitate the development of air-transport activity in a fragmented, peripheral region of the Community, of which it is one of the least developed parts.
(3) The compatibility of the aid was however conditional on compliance by Greece with 21 commitments. These commitments included:
(a) the acceptance that the Commission will, if necessary, have the main results of the plan and the application of the conditions verified by an independent consultant chosen by the Commission in conjunction with the Greek Government (Article 1(g) of the Decision);
(b) the submission by the Greek Government to the Commission each year, at least four weeks before the payment of each instalment of capital increase scheduled in January 1996 and January 1997, of a report on the implementation of the restructuring plan of the company which the Commission could submit for scrutiny by an independent consultant (Article 1(h) of the Decision).
II
(4) Pursuant to the abovementiond provisions, Greece submitted a report on the implementation of the plan to the Commission on 12 December 1995, prior to the payment of the second instalment of the capital increase of GRD 23 billion scheduled in January 1996. The Commission, with the help of an independent consultant, verified this report and compliance with the conditions.
(5) On the basis of the verification of the report and of compliance with the conditions, and taking into account the position expressed by Greece in a letter of 16 April 1996, the Commission adopted on 30 April 1996 a decision whereby it decided to open the procedure provided for in Article 93(2) of the Treaty with regard to the aids authorised by its initial Decision and with regard to the new and non-notifed aids which it had discovered.
(6) The opening of the procudure with regard to the aids initially authorised was motivated by the breach of several commitments set out in Article 1 of the initial Decision. Hence, the Commission identified shortcomings with regard to the following commitments:
(a) The commitment to refrain from interfering in the management of OA in the future except within the strict limits of its role as shareholder (Article 1(b) of the initial Decision).
The Commission detected several cases of continued and undue interference by the Greek Government in the management of the company:
(i) the government appears to appoint directly the board members of the five subsidiaries of OA although legally this task is incumbent on two representatives of the OA board (hereinafter issue 1);
(ii) the members of OA's board, which are all designated by the State as sole shareholder, appear to have the tendency to interfere constantly and in unexpected ways in the day-to-day management of the company, particularly in the area of staff appointments. The Commission considered that this is notably evidenced by the frequent meetings of the board and the frequent changes of its members (hereinafter issue 2);
(iii) the status of OA resulting from Law No 2271/94, which had been passed in order to implement the restructuring plan of the company was not comparable to that of a private undertaking as regards staff management. Article 4(4) of that Law provides for an express exception to the exemption of OA and its subsidiaries from the application of legislation on public undertakings in so far as they remained subject to Articles 1 to 24 of Law No 2190/94. The Commission considered that these provisions set out a cumbersome administrative recruitment procedure unsuited to personnel management in a company such as OA and that this exception testifies to the persistence of State control in a key element of management of the company (hereinafter issue 3).
In addition, Article 4(2) of Law No 2271/94 also provides that working regulations of OA employees "shall be approved by Presidential Decree on a proposal from the Minister for Transport and Communications, notwithstanding the provisions of Article 8(3) of Law No 2224/94". There is uncertainty as to whether this procedure is to apply beyond 31 January 1995. The same Article of Law No 2271/94 also explicitly provides that the agreements concluded in December 1994 between OA and representatives of the cabin crew on working conditions and any future agreement on the same matters are likewise to be approved by Presidential Decree on a proposal from the Ministry of Transport and Communications. Article 8(3) of Law No 2224/94, however, which constitutes the ordinary law applicable to undertakings in Greece, provides that the working regulations for the staff of undertakings are jointly approved by the social partners without any interference from the State, and then communicated to the Ministry of Labour (hereinafter issue 4).
Finally, there is uncertainty as to the exact scope of the abovementioned Article 4(4) of Law No 2271/94, as Greek Law No 2366/95 - adopted after Law No 2271/94 in December 1995 - appears to provide for specific regimes for OA staff, thus casting doubts on whether OA enjoys the same autonomy vis-à-vis the Greek Government from a legal point of view as a public limited company (hereinafter issue 5);
(iv) Law No 2271/94 in iteself constitutes an interference in the business, in that it determines the voluntary retirement conditions of OA personnel and the working conditions within the company. With effect from the notification of the initial Decision to the Greek authorities, OA should be governed only by ordinary Greek law, supplemented, where appropriate, by internal company agreements, particularly as regards labour law and social security. This non-compliance with the Decision is clear and in the case of the voluntary departure payments, which, in application of Article 2(4) of Law No 2271/94 exceed the payment normally due by, on the one hand, 25 % and, on the other hand, a sum corresponding to two months' salary (hereinafter issue 6);
(v) OA still does not appear to have complete freedom to define and organise its network. Olympic Aviation, the domestic subsidiary, is obliged to operate on six to seven small, unprofitable routes between the Greek mainland and the Greek islands for which public service obligations have not been imposed in accordance with Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes(3) (hereinafter issue 7);
(vi) OA transports the Greek press at extremely low fares compared with the costs incurred by this activity. Although the Government does not formally impose this obligation on OA (which cost is estimated at GRD 1,5 billion per annum), the Commission considered that such an abnormal situation would not be perpetuated by a truly autonomous management (hereinafter issue 8);
(vii) the Government and the Greek Civil Aviation Authority have so far refrained from paying for tickets issued by OA on behalf of their officials, agents and political staff. The debt in question amounts to several billion Greek drachmas. The Commission considered that the non-payment of this debt points to a continuing relationship of dependence between the Greek State and its national airline (hereinafter issue 9).
(b) The commitment to give OA the fiscal status of a public limited company comparable to that of Greek companies under ordinary law, except for exempting it from any taxes likely to affect the recapitalisation operation provided for in Article 1(c) of the initial Decision (Article 1(c) of the initial Decision).
(i) Article 1(1) of Law No 2271/94 provides that "the profits for financial years 1994, 1995, 1996 and 1997 of OA and Olympic Aviation SA shall be exempted from any form of public tax or levy to the extent that they result essentially in the reorganisation of the structure of their balance sheet in conformity with the approved recovery plan, on condition that these profits are made available for the capital restructuring and reorganisation of the company". This provision goes far beyond the exemption authorised by Article 1(c) of the initial Decision. Given that the conversion to equity of GRD 64 billion of the company's debt and the various captial injections totalling GRD 54 billion have no direct impact on the taxation of enterprises, the exemption in question applies solely to the tax on the exceptional profit resulting, for 1994 alone, from the cancellation of OA's debt totalling GRD 427 billion. Consequently, the Commission considered that the very general scope of the exemption provided for in Article 1(1) of Law No 2271/94 means that OA cannot be regarded as having the fiscal status of a public limited company comparable to that of Greek undertakings under ordinary law for the years 1995, 1996 and 1997 (hereinafter issue 10).
(ii) The same applies to the exemption provided for in Article 1(j) of Law No 2271/94, which states that "OA shall be exempted from any commission, tax or levy to be paid to the State or to third parties and shall be relieved of any additional charge" resulting from the granting of loan guarantees by Greece and the instalments of the capital injection (issue 9). The exemption authorised by Article 1(c) of the initial Decision applies solely to taxes and not to all charges likely to affect the company, and it concerns exclusively the recapitalisation operations and not the grant of State guarantees (hereinafter issue 11).
(c) The commitment to bring the agreements between the Greek State and OA into line with the provisions of the third package of liberalisation measures(4) by 31 December 1994 (Article 1(d) of the Decision):
(i) The presidential Decree terminating the preferential rights of OA to operate the domestic mainland services in Greece as from 31 December 1995 has still not come into force. The Commission considered that the continuation in force of national legislation which conflicts with Regulation (EEC) No 2408/92 constitutes a failure by Greece to comply with the abovementioned commitment (hereinafter issue 12).
(ii) It also appears that the Greek State has not yet terminated OA's exclusive right to operate domestic scheduled flights within continental Greece which were not operated before 1 January 1993 or which have not been operated by it since that date, in particular those of a seasonal nature. The Commission considers that this would amount to a failure to comply with the abovementioned commitment as well as with the commitment provided by Article 1(u) of the initial Decision which states that the Greek Government does not maintain, in conformity with Article 5 of Regulation (EEC) No 2408/92 any exclusive concession to the benefit of OA on domestic scheduled flights within continental Greece which were not operated before 1 January 1993 or which have not been operated continuously by OA since that date (hereinafter issue 13).
(d) The commitment not to grant any further aid to OA in any form whatsoever, in conformity with Community law (Article 1(e) of the initial Decision).
(i) Article 2(12)(a) of Law No 2271/94 provides that: "the purchase cost for military service and the years of previous service provided for in paragraph 2 and the payments provided for in paragraph 4 and subparagraph (b) of paragraph 7 of this Article shall be borne by the State budget up to an amount of GRD 11 billion". The Commission considered that this amount constitutes aid since the State is assuming direct responsibility for costs that should normally be borne by OA. Such aid affects trade between Member States and distorts competition in view of the international dimension of air transport and the fact that the benefit is reserved to OA alone. It therefore constitutes State aid within the meaning of Article 92(1) of the Treaty and Article 61(1) of the Agreement (hereinafter issue 14).
(ii) As indicated above, OA is exempt from any form of public tax or public levy for the years 1995, 1996 and 1997. It is also exempt from all taxes and other expenses in respect of the loan guarantees. The Commission considered that these measures, specific to OA, also constitute new Sate aid since, as has been explained previously, they were in no way provided for in Article 1(c) of the initial Decision (hereinafter issue 15).
(iii) Finally, OA has not paid landing and parking fees at Greek airports since the initial Decision was notified to Greece. Although the company is not formally exempt and these unpaid fees are shown as debts in the company's liabilities, the exemption of such fees for OA which derives from Article 5(1) and (2) of Greek Decree No DII/35502/15316 of 16 September 1994 has not been formally repealed (hereinafter issue 16).
(e) The commitment to accept the principle that airlines other than OA are authorised to operate routes between Greece and countries not belonging to the EEA and to make designations or multiple designations solely on the basis of the merits of each request (Article 1(o) of the initial Decision):
The presidential Decree terminating OA's exclusive right to operate scheduled international flights (passenger, freight, mail) under the Greek flag between Greece and countries not belonging to the EEA has still not entered into force. This is the same decree as that abolishing OA's preferential right on domestic Greek routes (mentioned in point (c)(i)). The Commission considered that this delay since the notification of the initial Decision constitutes a breach of the above commitment (hereinafter issue 17).
(7) In the light of the above, the Commission considered that although OA seemed to make a very satisfactory recovery in conformity with the plan on which the initial Decision was based, the Greek Government's failure to comply with several of the commitments, adherence to which was a condition of its authorisation of the aid, cast doubts on the continuous compatibility of this aid with Article 92 of the Treaty and Article 61 of the EEA Agreement. These new circumstances disturbed the balance struck in the initial Decision. Therefore, the authorisation of the aid was compromised. In this context, the Commission considered that it had to re-examine the aid in order to adopt a new and, if necessary, different Decision from that taken on 7 October 1994.
(8) The opening of the procedure was also prompted by serious doubts regarding the compatibility with Article 92 of the Treaty and Article 61 of the EEA Agreement of the new and non-notified aids it had discovered, namely that the Greek State had assumed responsibility for a sum of GRD 11 billion, tax exemptions for the period 1995 to 1997 and for loan guarantees, exemption from non-fiscal expenses likely to affect capital injections and possible exemptions from landing and parking fees.
(9) By letter of 31 May 1996, the Commission notified Greece of its decision to open the procedure provided for in Article 93(2) of the Treaty and gave it formal notice to submit its comments. By this letter, the Commission also reminded Greece that in accordance with Article 93(3) of the Treaty, no aid measure may be put into effect until the abovementioned procedure has resulted in a final decision. On this basis, the remaining capital injections of GRD 23 billion and GRD 12 billion could not be carried out and the remaining State guarantees for USD 378 million could not be granted. This letter was published in the Official Journal of the European Communities(5) and the other Member States and interested parties were also requested to submit their comments.
III
(10) By letter of 1 July 1996, Greece submitted its comments in reply to the Commission's letter of 31 May 1996 informing it of the decision to open the procedure.
(11) First, Greece asserted that notwithstanding the opening of the procedure with regard to the aids initially authorised in 1994, Greece was entitled to carry out the capital injections planned for 1995, 1996 and 1997. Article 1(i) of the initial Decision provides that Greece is committed not to carry out these capital injections only where the objectives of the restructuring plan have not been attained; it does not mention the failure to comply with the commitments.
(12) Secondly, Greece made detailed comments on the issues involved by adherence to the commitments.
(13) Following the opening of the procedure, the United Kingdom and Danish Governments and interested parties including British Airways, Lufthansa, SAS, Olympic Airways, IACA (International Air Carrier Association), ACE (European Community Air Carrier Association), ADL (German Charter Carrier Association) submitted their comments on this case. With the exception of the comments submitted by OA, all the comments received approved the Commission's decision to open the procedure provided for in Article 93(2) of the Treaty and raised a number of questions relating to the doubts expressed in that decision.
(14) In their observations, the States which commented pointed out that the Treaty rules on State aid must be strictly applied in the context of increased competition within the common air transport market, following the entry into force of the third package of liberalisation measures on 1 January 1993. On this basis, compliance with commitments which condition the compatibility of an aid with the common market must be effectively ensured. The procedure needs to be opened when these commitments are not adhered to by a Member State, as has occurred here, where the compromise reached in the Commission Decision of 7 October 1994 has been breached. In particular, the commitment not to give any further aid is a very important condition. The United Kingdom Government added that, if Greece had effectively not honoured the commitments, the aids originally authorised should be recovered. The Danish Government for its part insisted on the fact that the new aid measures cannot be exempted since they cannot meet the requirements of the Market Economy Investor Principle and since, in any case, there is no exceptional circumstance unforeseeable and external to OA which could possibly justify these new aid measures.
(15) These points also appear, to various degrees, in the observation of the interested third parties who also make additional points concerning the failure of Greece to comply with the commitments.
(16) With the exception of OA, all interested parties denounced the monopoly of Olympic Airways on third-party handling services at Greek airports, which results in a poor quality of service and high prices. In addition, they claimed that OA provides a far better service for its own flights as compared to the service it provides to its competitors, thus clearly discriminating against them. SAS requested the immediate liberalisation of ground-handling services in Greece in order to restore the balance of the initial Commission Decision.
(17) Some of the interested parties indicated that, contrary to the confirmation given by Greece in the initial Decision, self-handling is not in practice fully liberalised in Greece. Lufthansa indicated that no response has been given since January 1996 by the Greek Civil Aviation Authority to its application for a self-handling licence at Athens-Hellenikon airport. British Airways mentioned its continuous difficulties in effectively self-handling its flights.
(18) Lufthansa further indicated that the aid received by OA distorts competition on the routes between Germany and Greece as OA decreased its fares on these routes.
(19) ACE called for the discontinuation of the exemption of the Greek islands from the application of the third package in order to safeguard the balance of the initial Commission Decision.
(20) ADL indicated that charter flights operated by Community air carriers between other Member States and the Greek islands remain subject to important constraints by virtue of a Greek Regulation of 1 March 1996. Hence, those carriers cannot sell one-way tickets, nor can they transport freight apart from agricultural products and press publications. ADL further stressed that these restrictions were not applied to OA. It also requested the application of the third package to the Greek islands.
(21) OA made comments similar to those submitted by Greece.
(22) All the comments were communicated to Greece by letter of 30 July 1996.
IV
(23) The comments of the interested parties raised two additional issues which further impaired the balance of the initial Decision:
(a) The restictions laid down by the Greek Regulation of 1 March 1996 with regard to the operation of non-scheduled air services to the Greek islands are incompatible with the commitment of Greece to comply with the definition of non-scheduled air services as it may be inferred from the provisions of Regulation (EEC) No 2408/92; in particular not to impose on non-scheduled services any constraint such as the prohibition of "seat only" provision on return journeys, prohibition of the transport of cargo or mail and the requirement of a minimum sojourn time (Article 1(r) of the initial Commission Decision). Moreover, the Commission was concerned by the fact that those restrictions would not apply to OA, which would then benefit from a preferential regime involving a discrimination (hereinafter issue 18).
(b) Although Article 1 of the initial Decision does not include a specific commitment on the part of Greece as to self-handling at Greek airports, the initial Decision states that "the Commission takes note of the Greek authorities' assurances that all aspects of self-handling are authorised at those airports" as an alternative to the poor quality of service offered by OA in the framework of its monopoly for third-party handling services. This assurance had been taken into account by the Commission in the course of its assessment of the compatibility of the aid.
The practical difficulties or even the impossibility for several Community air carriers to self-handle their flights at Greek airports led the Commission to consider that, in practice, self-handling was not fully authorised at Greek airports. This was further evidenced by information transmitted to the Commission by the Association of Greek airlines on 11 June 1996 according to which no reply had been given so far by the Greek Civil Aviation Authority to the applications for self-handling lodged in December 1995 by Venus Airlines for Kos, Cronus Airlines for Thessalonica and KAL for Heraklion and Rhodes (hereinafter issue 19).
(24) By letters of 4 July 1996 and 7 August 1996, the Commission drew the attention of Greece to these new issues and requested information thereon.
(25) In addition, following a closer examination of the status of OA under Greek law with the help of a specialised lawyer, the Commission also identified an additional breach of the commitment of Greece not to grant any further aid to OA in any form whatsoever (Article 1(e) of the initial Commission Decision). Article 2.4 of Law No 2271/94 provides that the redundancy indemnities given to OA employees accepting early retirement in accordance with the conditions set out by the same provision is not subject to ordinary income taxation but to a preferential income taxation. This preferential regime constitutes an incentive to employees to leave the company and therefore allows OA to secure the redundancy objective set out by the restructuring plan. On this basis, it constitutes an aid since the State is de facto assuming direct responsibility for costs which would otherwise need to be borne by OA in order to reach the same objective. This aid affects trade between Member States and distorts competition in view of the international dimension of air transport and the fact that the benefit is reserved to OA alone. It therefore constitutes State aid within the meaning of Article 92(1) of the Treaty and Article 61 of the EEA Agreement (hereinafter issue 16a).
(26) Finally, the study of the status of OA also revealed that the unpaid debt of the Greek State to OA consisted not only of unpaid services to the Greek Civil Aviation Authority but also of services to various other State entities, inlcuding ministries, Government agencies and public undertakings. Apart from the State debt, the Greek political parties had also accumulated substantial debts towards OA (see issue 9 above).
(27) The Commission sent to Greece on 4 December 1996 a letter requesting information on all the issues concerning a breach of the commitments as identified in the Commission Decision of 30 April 1996 opening the procedure as well as on the abovementioned new issues.
V
(28) Continued contacts and exchanges of information took place between the Commission and Greece in 1997.
(29) On 13 June 1997, the Commission indicated to the representatives of the Greek Government that, given the time that had elapsed since its Decision to open the procedure (14 months) and given the fact that the restructuring plan on which the initial Decision was based ended in 1997, the Commission needed a confirmation that the objectives of the plan had been achieved by OA and that the company's return to viability was secured. Greece indicated that a report on this matter would be submitted to the Commission.
(30) Accordingly, on 20 August 1997, Greece submitted to the Commission a report concerning the financial performance of OA for the period 1995 to 1997 and including financial projections up to 2001. In conformity with Article 1(g) of the initial Decision, the Commission appointed, in conjunction with Greece, an independent consultant (Deloitte & Touche) to assess the implementation of the plan and progress made. The consultant's report was submitted on 10 November 1997. The report was based on OA's audited accounts for 1996 and provisional accounts for 1997.
(31) It emerged from the report that, although OA had continued to make efforts to maintain its return to viability, it had not met the objectives of the restructuring plan.
(32) First, although net profits had continued increasing since 1995, they had increased at a slower rate than planned (from GRD 9,9 billion in 1995 to a projected GRD 14,6 billion for 1997, whereas the plan had provided for an increase from GRD 13,9 billion in 1995 to GRD 29,6 billion in 1997). OA had been negatively affected by higher than expected exchange rates on the US dollar. However, the effects of this situation were largely counterbalanced by higher than expected growth of the markets on which OA was active (5,5 % against 3 % originally forecast) and accounting adjustments. A more detailed analysis revealed that the air-transport business of OA was actually still making losses and that without the contribution of ground-handling activities which continued to generate important revenues because of the monopoly held by OA (GRD 40,9 billion in 1996, projected at 40 billion in 1997), the company would be making losses.
(33) Secondly, some restructuring measures provided by the plan had not been fully implemented or had not produced the expected results. This was the case in particular for personnel reductions and the change of working regulations, the reorganisation of the structure of the company, the setting-up of a reliable and comprehensive management information system and to a lesser extent for the reorganisation of the network. As a result, OA had failed to meet the operational objectives of the plan. Personnel costs remained of high concern, as they had increased far beyond projections. Personnel costs increased substantially between 1995 and 1996 despite reductions in the number of employees. Moreover, personnel productivity was also an area of concern as it remained substantially below other Community carriers belonging to the Association of European Air carriers (AEA).
(34) Therefore, although OA remained viable for the time being, it was clear that, in the context of the imminent liberalisation of ground-handling activities in the Community (which became effective with Council Directive 96/67/EC of 15 October 1996 on access to the ground-handling market at Community airports(6)), its long-term viability could be achieved only if the company could secure the profitability of its air-transport business. This was not the case, as OA was still lacking a real competitive structure in terms of adequation between costs (in particular labour costs) and revenues. Moreover, there were serious concerns as to its ability to face the important investments involved by its fleet renewal and its move to the new Athens airport at Spata. These two issues clearly constituted important medium-term challenges for the viability of OA. Finally, the company also had to take into account the constraint involved by the fact that the last two imstalments of the capital injection initially scheduled for payment in January 1996 and January 1997 and the Sate guarantees worth GRD 378 billion remained blocked for the time being as a result of the opening of the procedure.
(35) On this basis, it was clear that OA needed, on the one hand, to fully implement those restructuring measures for which actions had not been taken and, on the other, to update the plan and provide for additional restructuring measures. These additional measures were necessary to take into account the present financial position of OA and the financial consequences of the abovementioned challenges and constraint faced by the company.
(36) On 21 November 1997, the Commission presented the results of these findings to the management of OA. The management of OA broadly accepted these findings and indicated that the restructuring plan was in the process of being updated on the basis of a report prepared by a firm of financial consultants appointed by OA (McKinsey).
(37) However, in December 1997 the Greek Government decided to replace the management team of OA. A new management team effectively came into office in January 1998 and started designing the revised restructuring plan. This revised plan was to be based on new working regulations to be agreed between the company and the 17 unions representing the employees. It was expected that Greece would submit the revised plan to the Commission in April 1998.
(38) Following a negative reaction by the unions which rejected the proposed new working regulations, OA was unable to finalise the revised restructuring plan as envisaged. At the end of March 1998, the company underwent a severe internal crisis which caused substantial disruption to its operations. At the same time, it appeared that the company was facing serious liquidity problems as it had to make advance payments for the aircraft ordered for the renewal of the fleet without having arranged for their financing, because no State guarantees were available. The internal crisis was finally halted when the Greek Government, in accordance with Greek law, decided to impose the working regulations proposed by OA by way of Law No 2602/98 adopted by the Greek Parliament on 9 April 1998.
(39) Contacts between the Commission, Greece and OA as well as exchanges of information on all the issues involved in the case (including the revision of the restructuring plan) have continued since February 1998. These contacts included meetings in Athens and Brussels on 19 February 1998, 16 March 1998, 30 April 1998, 5, 9, 22 and 29 June 1998.
(40) By two letters of 3 and 6 July 1998, Greece submitted to the Commission a revised restructuring programme for OA and additional information on compliance with the commitments and the additional issues identified by the Commission in its letter of 4 December 1996.
VI
(41) On the basis of all the information transmitted by Greece following the opening of the procedure, notably by letters of 28 May 1998, 3 and 6 July 1998 and by hand on the occasion of various meetings, the situation concerning first the commitments and the additional issues identified by the Commission and secondly the revised restructuring plan is as follows.
Commitments and the additional issues identified by the Commission
(42) As to the commitments set out in Article 1 of the initial Decision:
(a) On the commitment to refrain from interfering in the management of OA except within the strict limits of the role of the Greek Government as shareholder (Article 1(b) of the initial Decision):
(i) With regard to the appointment of the board members of OA subsidiaries, the Commission received formal assurances from the Greek authorities that this issue is a matter exclusively reserved to OA's management (issue 1).
(ii) With regard to the constant interference of the board of OA in day-to-day management of the company (issue 2), the Commission received formal assurances from Greece that, in accordance with Greek law, the board's mission remains limited to the general formulation of the company's policy.
(iii) With regard to the cumbersome administrative recruitment procedure provided by Articles 1 to 24 of Law No 2190/94 (issue 3), the Commission was supplied with Greek Law No 2527/97, which provides for a specific sui generis recruitment procedure for OA seasonal staff. Accordingly, OA can directly contract seasonal staff from a reserve list without any additonal procedure.
(iv) With regard to the approval of the working regulations applicable to OA staff by Presidential Decree (issue 4), Greece formally confirmed to the Commission that this procedure was only applied once in the framework of Law No 2271/94 and that since 31 January 1995, the ordinary arrangements under Greek labour law had applied. The Greek authorities further indicated that, in any case, it is common practice for the social partners to receive formal endorsement of their agreements on working regulations by the State through a legislative provision.
(v) With regard to the specific arrangements set out by Law No 2366/95 for OA (issue 5) and the fact that Law No 2271/94 determined the working conditions for OA and the conditions for voluntary retirement (issue 6), this procedure was necessary in order to implement the changes brought about by the restructuring programme of OA. The corresponding provisions of Law No 2271/94 were in fact an essential element of the plan.
(vi) With regard to the freedom of OA to define and organise its network (issue 7), Greece indicated that it was not imposing on OA the obligation to operate six to seven small domestic routes. This was further confirmed by OA itself, which indicated that it is entirely free to decide which routes it wants to operate. In this connection, the company indicated that the reorganisation of its network is part of the follow up of its restructuring and takes place on the basis of commercial considerations.
(vii) With regard to the conditions for the transport of press publications (issue 8), OA has applied new increased tariffs since 1 June 1998. These tariffs are based on the prevailing IATA rules.
(viii) With regard to the settlement of the respective debts of the Greek State and OA (issue 9), the Greek authorities gave the following information and assurances:
- On the basis of a formal agreement between the Greek Civil Aviation Authority and OA, all services provided by OA to the Greek Civil Aviation Authority are provided in accordance with OA's normal commercial and pricing policy. The compensation of the respective debts of OA and the Greek Civil Aviation Authority to each other has been carried out. On this basis, OA owes GRD 1,29 billion to the Greek Civil Aviation Authority (mainly past unpaid landing and parking fees). This amount will be paid before 31 December 1998. An amount of GRD 375 million of debt is currently owed by the Greek Civil Aviation Authority to OA. The Greek courts will settle this matter.
- Since January 1995, the issuing of tickets for travel by Greek Government officials on mission is conducted under normal commercial and pricing terms.
- All State entities have started to pay back their debts to OA. Central Government agencies have already paid GRD 5,78 billion and an estimated GRD 2,63 billion will be paid upon confirmation of the amounts involved. Social security funds and other State entities have already paid GRD 228 million and an estimated GRD 1,22 billion will be paid upon confirmation of the amounts involved. Should these entities not be in a financial position to pay their remaining debts for budget reasons, the State will secure the corresponding payments to OA. In any case, all State debts will be paid before 31 December 1998.
- The debts of private entities which are placed under the supervision of public entities and of public companies will be claimed by OA before the Greek courts in accordance with normal procedures.
- The debts of the political parties to OA, amounting to GRD 1,64 billion, will be paid in accordance with the provisions of Law No 2602/98 which provides for their payment no later than 31 December 1999. For this purpose, the amounts concerned will be deducted from State funding made available to the political parties.
(b) On the commitment to give OA the fiscal status of a public limited company comparable to that of Greek companies under ordinary law (Article 1(c) of the initial Decision):
- With regard to the scope of the tax exemption referred to in Article 1(1) of Law No 2271/94 (issue 10), Greece gave written confirmation to the Commission that this provision applies only to the tax on exceptional profit resulting, for 1994, from the cancellation of OA's debt totalling GRD 427 billion.
- With regard to the scope of tax exemption referred to in Article 1(j) of Law No 2271/94 (issue 11), Greece confirmed that this provision was only applied for taxes concerning the recapitalisation of OA and not to other forms of charges nor to taxes concerning the State guarantees.
(c) On the commitment to bring the agreements between the Greek Government and OA into line with the provisions of the third package by 31 December 1994 (Article 1(d) of the Decision):
With regard to the entry into force of the Presidential Decree terminating the preferential rights of OA to operate mainland services (issue 12) and the termination of the exclusive right of OA to operate mainland domestic scheduled services which were not operated before 1 January 1993 or which have not been operated by it since that date (issue 13), the Greek authorities referred to Presidential Decree No 359 of 13 September 1996 which entered into force on 19 September 1996. This Presidential Decree formally terminates all preferential and/or exclusive rights of OA for the operation of both mainland domestic services in Greece and services between Greece and non-EEA countries.
(d) On the commitment not to grant any further aid to OA in any form whatsoever, in conformity with Community law (Article 1(e) of the initial Decision):
(i) With regard to the aids involved in the GRD 11 billion mentioned in Article 2(12)(a) of Law No 2271/94 (issue 14) and by the preferential tax treatment of the redundancy indemnities granted to OA employees as provided by Article 2.4 of Law 2271/94 (issue 16a). Greece indicated that the cost of the preferential tax treatment was estimated at GRD 2,2 billion. Greece also informed the Commission by letter of 6 July 1998 that, taking into consideration the fact that the Commission considered that these measures involved new aids to OA, it was willing to reduce the amount of the remaining part of the capital injection to be carried out in accordance with the restructuring plan as approved by the Commission in 1994 by GRD 13,2 billion.
(ii) With regard to the aid involved by Article 1(1) and (j) of Law No 2271/94 (issue 15), Greece referred to the fact that the exact scope of the tax and levy exemptions had been clarified and did not involve any other aid than that expressly authorised by the initial Decision.
(iii) With regard to the aid involved by the continuation of the exemption of OA from the payment of parking and landing fees at Greek airports after the notification of the initial Decision (issue 16), Greece referred to the Presidential Decree No 138/97 of 13 June 1997, whereby the exemption enjoyed by OA in this regard by virtue of Greek Decree No DII/35502/15316 was formally abrogated. It also referred to the fact that the amount of unpaid charges owed by OA to the Greek Civil Aviation Authority since 1 Janaury 1995 will be compensated with the debts owed by the Greek Civil Aviation Authority to OA (see issue 9).
(e) On the commitment to accept the principle that airlines other than OA are authorised to operate routes between Greece and countries not belonging to the EEA and to make designations or multiple designations solely on the basis of the merits of each request (Article 1(o) of the Decision):
With regard to the entry into force of the Decree abrogating the exclusive rights enjoyed by OA in this regard (issue 17), Greece referred to the abovementioned Presidential Decreee No 359 of 13 September 1996 which entered into force on 19 September 1996. This Presidential Decree terminated all exclusive rights held by OA for the operation of services between Greece and non-EEA countries.
(f) On the commitment to accept the indirect definition of non-scheduled air services as indicated in the provisions of Regulation (EEC) No 2408/92, in particular not to impose any constraint on non-scheduled services (Article 1(r) of the initial Decision):
With regard to the abolition of existing restictions for the provision of non-scheduled services to the Greek islands (issue 18), Greece referred to the Greek Regulation No D1/A/51328/2680 of 17 December 1997, which removes the operational constraint initially provided for the transport of freight by the Greek Regulation of 1 March 1996 and fully applies to all Community air carriers, including OA.
(43) As regards the issue of self-handling (issue 19), Grece referred to the modification of the Greek Regulation for the procedure for the granting of self-handling licences which was adopted on 4 November 1997. Accordingly, the Greek Civil Aviation Authority is now under the obligation to respond to any application within two months. In the absence of any response, the approval of the application is automatic and the Greek Civil Aviation Authority is therefore under an obligation to grant the licence.
(44) Moreover, Greece informed the Comission that Cronus Airlines had been granted a self-handling licence for the airports of Thessaloniki, Athens and Heraklion. The application of Venus Airlines for Kos did not need to be further considered as the company had ceased ground-handling operations. The pending applications of KAL, Air Greece and Avionic for the airports of Heraklion, Rhodes, Mtilini, Santorini and Thessaloniki, which were initially refused, are presently under re-examination. With regard to the application lodged by Lufthansa, Greece indicated that this application is being examined and that, in this framework and in accordance with the applicable procedure, a request has been made to the company for an audit of its personnel and equipment.
(45) Finally, Greece indicated to the Commission that Directive 96/67/EC on access to the ground-handling market at Community airports is in the final stage of implementation and that those airports which do not fall within the scope of the Directive will remain covered by the present arrangements applicable in Greece. According to those arrangements, self-handling is fully authorised. Licences can only be refused on the basis of objective space and capacity constraints or on the basis of safety and security considerations.
Revised restructuring plan
(46) The revised restructuring plan submitted by Greece to the Commission covers the period 1998 to 2002. It takes into account the final results of OA for 1997 and preliminary results for the first months of 1998. These results show that the position of OA has further deteriorated as compared with the results set out by the report submitted by Greece on 20 August 1997. While this report had projected net profits in the order of GRD 14,6 billion for 1997 (against GRD 19,6 billion projected by the restructuring plan), OA has acutally posted a net loss of GRD 6,8 billion. This loss of profitability directly stemmed from an extraordinary salary increase granted in order to resolve personnel conflicts. This increase resulted in a 19 % labour cost rise over 1996 (+ GRD 25 billion).
(47) The revised restructuring does not provide for any aids other than those authorised by the initial Decision. However, in order to reflect the reduction of the remaining amount of the capital increase not yet granted to OA to counterbalance the GRD 13,2 billion of new aid (see issues 15 and 16a), the revised plan only provides for a capital increase of GRD 21,8 billion instead of the initially planned amount of GRD 35 billion.
(48) The revised plan aims at ensuring the long-term viability of the company by the full implementation of the restructuring measures provided by the initial plan and by the implementation of additional restructuring measures. These measures concentrate on two objectives:
(a) The reorganisation of the cost structure of the company:
The plan is primarily based on the new working regulations included in Law No 2606/98 of 9 April 1998 which provided for new working conditions based upon the recommendations of a report produced by McKinsey. These include:
(i) General salary freeze for the period 1998 to 2000 and limited convergence salary increases for the period 2001 to 2002.
(ii) Introduction of working time conditions for crew members in line with international standards.
(iii) A reduction of jobs (approximately 1000) and hierachy levels (from eight to four).
(iv) Discontinuation of various allowances granted to specifc categories of personnel.
(v) Overtime decrease, introduction of a flexible timetable adapted to the operational needs of the company, merging of positions (all for ground staff).
(vi) Reduction of staff by 1300 through natural wastage and reduction of seasonal staff by 30 %.
These measures will allow OA to reduce operating costs. Their implementation has already started.
(b) The improvement of the yields:
Apart from the new working conditions which will impact positively on the productivity of the company and thus on the yields, the plan provides for the following measures:
(i) Product improvement and redesign, together with the implementation of a new marketing policy.
(ii) Redimensioning of the network by increasing frequencies and building hub-type operations at Athens. Frequencies on the potentially most profitable routes will be increased and timetables reset. The operation of non-profitable routes will be discontinued.
(iii) The entry into the fleet of new aircraft better suited to the operational needs of OA and more cost-effective. The number of aircraft in the fleet will increase from 35 in early 1998 to 40 in 2002.
On this basis, OA's yields are expected to catch up with levels to be achieved by other Southern European air carriers whose markets are, although to a lesser extent than OA, also influenced by seasonal leisure traffic.
(49) The plan also provides for company-wide reorganisation.
(a) The role of all non-core business activities will be redefined and gradually transformed into autonomous subsidiary companies in order to achieve better results. In the mean time, business plans for the maintenance department, ground-handling department and cargo operations will be developed.
(b) Charter activities will be developed through a special, purpose-made company: Macedonian Airlines.
(50) The plan is based on a major investment plan to be carried out without new capital to be drawn from the shareholder. These investments comprise:
(a) The acquisition of 12 new aircraft replacing older ones for a total cost of USD 980 million:
- Two A340s will join the fleet in September and October 1998 while two others will join the fleet in 1999. They will replace the four B747s which will leave the fleet (to be sold by 2000). An additional A340 could join the fleet subject to operational requirements during the restructuring period.
- Eight B737s will join the fleet in 2000.
(b) The move to the new Athens airport at Spata in 2001 for an estimated cost of GRD 75 billion, of which approximately GRD 35 billion is expected to be financed by the compensation granted by the Greek State for the loss of facilities at the existing Hellenikon airport which will be closed upon entry into service of Spata.
(c) Additional infrastructure investment necessary for present operations at an average cost of GRD 10 billion per year.
(51) The main indicators and ratios of the financial projections are as follows:
TABLE
TABLE
(52) The above figures are based in particular on the assumption that aviation revenues will increase by 25 % over the duration of the plan (from GRD 269 billion in 1998 to GRD 337,6 billion in 2002) while ground-handling revenues will decrease by 28,2 % (from GRD 46,5 billion in 1998 to GRD 33,3 billion in 2002) as a result of the liberalisation of this activity. The operating result is expected to increase to GRD 21,2 billion in 1999. It will then decrease to GRD 1,6 billion in 2001 and stabilise at GRD 8,4 billion in 2002 as a result of the major investments to be made by OA for its move to Spata and the fleet renewal (accrued financial and operating leases expenses, interest expenses and depreciation costs). Profits before tax will therefore follow the same trend, while remaining positive throughout the duration of the revised plan.
(53) The revised plan is supplemented by an implementation plan setting out the timing for the various measures, implementation costs and the timing and amounts of the planned benefits.
(54) In agreement with the Greek authorities, the Commission appointed the consultant who verified the report submitted by the Greek authorities on 20 August 1997 to analyse the soundness of the revised restructuring plan. The consultant's report was submitted to the Commission on 16 July 1998.
(55) It emerges from the report that the revised plan of OA is realistic and should allow OA to restore viability in the medium term.
(56) OA is expected to return to profitability in 1998, even though the company faced GRD 15 billion of extraordinary costs due to operational disruptions in March to April 1998. Net profits (after tax) will then rise to GRD 20,9 billion in 1999, thus reaching very satisfactory levels. Because of a substantial increase of financial expenses to be incurred by the fleet renewal programme and the decrease of ground-handling revenue consecutive to the termination of the OA monopoly, net profit (after tax) will then decrease and stabilise at GRD 3,9 billion at the end of the plan in 2002.
(57) The expected decrease in net results from 2000 implies that in order to maintain viability beyond that date, OA will have to:
- effectively sustain costs at a lower level, in particular labour costs, while maintaining the current level of activity throughout the duration of the plan and beyond. In this regard, the report of the consultant stressed that an improved management information system is required, so that the management of OA constantly receives timely analysis of total operating cost and revenues enabling it to adapt the revised plan by providing for additional measures if needed. These additional measures would have to counteract any shortfall in revenues and further reduce labour costs,
- ensure that the compensation to be granted by Greece for the loss of investment at Hellenikon airport will actually be available in time for the projected investments to be carried out at Spata airport. Otherwise, the company could be exposed to larger cash requirements.
(58) In the light of the factual information summarised above, the Commission is in a position to make a final assessment in this case.
LEGAL ASSESSMENT
VII
(59) Under the terms of Article 92(1) of the Treaty and Article 61(2) of the EEA Agreement, any aid granted by a Member State or through State resources in any form whatsoever which distorts competition by favouring certain undertakings or the production of certain goods is incompatible with the common market and with the EEA Agreement.
(60) In this case, it is important to assess, in the light of those provisions:
(a) The aid measures granted and to be granted by Greece to OA, initially authorised by its Decision of 7 October 1994, and for which the Commission decided on 30 April 1996 to open the procedure provided for in Article 93(2) of the Treaty. These aid measures comprise:
(i) loan guarantees extended to the company until 7 October 1994 pursuant to Article 6 of Greek Law No 96/75;
(ii) new loan guarantees totalling USD 378 million for loans to be contracted before 31 December 1997 for the purchase of new aircraft;
(iii) easing of the undertaking's debt burden by GRD 427 billion;
(iv) conversion of GRD 64 billion of the undertaking's debt to equity;
(v) a capital injection of GRD 54 billion in three instalments of GRD 19, 23 and 12 billion in 1995, 1996 and 1997 respectively.
(b) The new non-notified aid measures granted by Greece to OA for which the Commission also decided on 30 April 1996 to open the procedure provided for in Article 93(2) of the Treaty as well as the additional non-notified aid measure were identified by the Commission in the course of this procedure. These measures comprise:
(i) the payment by the State of the purchase cost for military service and the year of previous service and of the redundancy indemnities paid to the employees accepting early retirement up to an amount of GRD 11 billion as provided pursuant to Article 2(12)(a) of Law No 2271/94
(ii) the tax exemptions for the period 1995 to 1997 and for loan guarantees as well as the exemption from non-fiscal expenses likely to affect capital injections as likely to be involved by Article 1(1) and (i) of Law No 2271/94
(iii) the apparent continuation, beyond the date of notification of the initial Decision to Greece, of the exemption of OA from the payment of landing and parking charges at Greek airports
(iv) the preferential tax treatment of the redundancy indemnity granted to OA employees accepting early retirement, as provided by Article 2(4) of Law No 2271/94.
VIII
(61) With regard to those aid measures initially authorised for which the Commission decided to open the procedure, the Commission considers that there is no doubt that they constitute State aid and that they affect trade between Member States and also distort competition within the common market. In this regard, the Commission refers to its assessment set out in the initial Decision.
(62) The Commission considers that the derogations provided by Article 92(2) of the Treaty and Article 61(2) of the EEA Agreement as well as Article 92(3)(a) and (b) of the Treaty and Article 61(3)(a) and (b) of the EEA Agreement do not apply in the case at hand. In this regard, the Commission refers to its assessment as set out in the initial Decision. The Commission also considers that the derogation provided by Article 92(3)(c) in respect of aid intended to promote or facilitate the development of certain areas does not apply either in the case at hand. In this regard, the Commission refers to its assessment in the initial Decision.
(63) With regard to the derogation provided by Article 92(3)(c) of the Treaty in respect of aid to facilitate the development of certain economic activities where such aid does not adversely affect trading conditions to an extent contrary to the common interest, the Commission also refers to the initial Decision whereby it examined whether the criteria which allows it to consider that an aid for the restructuring of a company may be considered as compatible with the common market are met. By that Decision, the Commission considered that the compatibility of the aid with the common market was subject to the respect by Greece of 21 commitments set out in Article 1 of that same Decision. Taking into account the breach by Greece of several of these commitments as well as all the relevant additional issues pertaining to this case, the Commission has re-examined the compatibility of this aid with the common market.
(64) For this purpose, the Commission has verified whether all the commitments of the initial Decision are now being adhered to by Greece and whether the situation as to self-handling at Greek airports reflects the assurances given by the Greek authorities in the initial Decision.
(65) Turning to the commitments for which the Commission identified breaches by Greece in its decision to open the procedure (Article 1(b), (c), (d), (e), (o) of the initial Decision of 7 October 1994) and in the course of the subsequent procedure (Article 1(r) of the initial Decision of 7 October 1994), the Commission, on the basis of the information and assurances given by the Greek authorities, notably by letters of 28 May, 3 and 6 July 1998, considers that all the issues involved by the respect of these commitments are resolved (issues 1 to 18).
(66) With regard in particular to:
(a) The cumbersome administrative procedure set out by Articles 1 to 24 of Law No 2190/94 (issue 3). The Commission considers that the application of this procedure to permanent staff is not unsuited to flexible personnel management as needs for such personnel are usually planned in advance. Conversely, the new derogating procedure which now applies to seasonal staff provides for the required flexibility, while allowing for transparency at the same time.
(b) The conditions for transport of press publications (issue 8). Taking into account the assurances given by Greece, the Commission has verified that the new tariffs are set by OA in accordance with a normal commercial policy and allow the company to cover its costs for this activity (the new tariffs will result in an increase of the corresponding yields from GRD 25/TKT to GRD 408/TKT and break-even load factor will decrease from 110 % to 35,2 %).
(c) The settlement of the respective debts of OA and the Greek State (issue 9). the Commission considers that the payment of all Greek State debts to OA is now ensured within a reasonable time frame.
(d) The aids involved in the GRD 11 billion provided by Article 2(12)(a) of Law No 2271/94 (issue 14) and by the GRD 2,2 billion resulting from the preferential tax treatment of redundancy indemnities as provided by Article 2(4) of Law No 2271/94 (issue 16a). The Commission considers that these measures constitute State aid to OA incompatible with the common market within the meaning of Article 92(1) of the Treaty. However, given the fact that, on the one hand, Greece has unilaterally decided to reduce the amount of the remaining capital increase to be carried out for an amount equal to the nominal amount involved by this aid and that, on the other hand, OA has not benefited from the remaining amount of the capital increase, as the corresponding instalments scheduled for January 1996 and January 1997 have not yet taken place, the Commission considers that the corresponding financial benefit for OA (principal and interest) will be neutralised. On this basis, this aid will have had no effect on competition.
(e) The aid involved by Article 1(j)(b) and (i) of Law No 2271/94 (issue 15). The Commission considers that since Greece has confirmed to the Commission that the tax exemption provided for in Article 1(j)(b) and (i) is limited to those exemptions authorised by Article 1(c) of the initial Decision, these provisions do not involve any element of aid to OA.
(f) The aid involved by the apparent continuation beyond the date of notification of the initial Decision to Greece of the exemption of OA from the payment of landing and parking charges at Greek airports (issue 16). The Commission considers that since a compensation between, on the one hand, the unpaid landing and parking charges at Greek airports by OA to the Greek Civil Aviation Authority and, on the other hand, the debts of the Greek Civil Aviation Authority to OA has taken place and since Greece has confirmed that OA will repay the outstanding amount to the Greek Civil Aviation Authority estimated at GRD 1,29 billion (interest included) by 31 December 1998, this issue does not involve any element of aid to OA.
(67) As to the other commitments for which no breach by Greece was identified by the initial Decision (Article 1(a), (f) to (n), (p), (q), (s) to (u)), the information available to the Commission demonstrates that Greece has not failed to comply with these commitments.
(68) Consequently, the Commission considers that all the commitments set out in the initial Decision are now fully complied with by Greece.
(69) As to self-handling at Greek airports, the Commission, having taken into account the amendment of the Regulation on the procedure for the granting of licences for self-handling, the information transmitted by Greece on the applications lodged by Community carriers, and the assurances given by the Greek authorities in their letter of 3 July 1998, considers that all aspects of self-handling are effectively authorised at Greek airports in accordance with the assurances given in the initial Decision and that this issue is now resolved (issue 19).
(70) However, the Commission considers that the fact that Greece now fully observes all the commitments does not suffice to secure the compatibility of the aid with the common market. Hence, it is also necessary to assess the effect on the common interest of the past failure of Greece to adhere to some of these commitments.
(71) The fact that the State has continued to interfere in the management of OA beyond the strict limits of its role as a shareholder has not resulted in a transfer of OA's problems to its competitors. In addition, this behaviour has not yielded any kind of benefit to OA. On the contrary, it has had a negative impact on specific aspects of the restructuring process of the company. The same applies to the fact that the State has not given to OA the fiscal status of a public limited company comparable to that of Greek companies under ordinary law.
(72) The fact that OA has been granted unauthorised aids for a total amount of GRD 13,2 billion could have distorted competition. However, the cumulative effect of the fact that the remaining amount of capital injection has still not been carried out to date and the fact that it will be reduced by the same amount neutralises any distorting effect of that aid on competition.
(73) The fact that the Presidential Decree terminating the preferential and exclusive rights of OA to operate mainland domestic services did not enter into force before 31 December 1994 has not had any effect in practice on competitive conditions, since all the mainland domestic routes were already open to competition.
(74) The fact that the Presidential Decree terminating OA's exclusive right to operate scheduled international services to non-EEA countries has not entered into force in a reasonable time does not appear to have had any effect in practice on competitive conditions since the Commission has not been informed of any refusal by the Greek authorities to grant traffic rights for the operation of such services.
(75) The fact that some constraints for the operation of non-scheduled flights to Greece have remained after the adoption of the initial Decision is likely to have had some effects on competitive conditions. However, given that these constraints concerned only operations to the Greek islands and concerned only specific aspects of air transport, their effect on competitive conditions has been limited. The Commission considers in any case that these limited effects are offset by the fact that OA has not received the remaining amount of capital injection and has not been able to use the State guarantees.
(76) On the basis of the above, the Commission considers that the past failure of Greece to observe some of the commitments had no effect on the common interest or had limited effects which have largely been offset by the negative consequences of the opening of the procedure for OA.
(77) In addition, the Commission has verified whether the aid still forms part of a comprehensive restructuring programme aimed at improving the financial health of OA so that it can, within a reasonable period, become viable and competitive in the environment in which it is operating.
(78) In this regard, the Commission notes that the Greek Government submitted on 6 July 1998 a revised restructuring programme covering the period 1998 to 2002, and thus extending the period of the restructuring beyond the term provided by the initial plan (1997). An updating of the initial plan and an extension of the restructuring period were necessary to allow OA to redress the situation with regard to the achievement of the objectives provided by the initial plan.
(79) The revised plan does not provide for any aid measures other than those which have been authorised by the initial Decision and which have not yet been granted to OA. These include a GRD 35 billion captial increase and the State guarantees totalling USD 378 million initially scheduled to be used for loans contracted before 31 December 1997. However, as indicated by Greece in its letter of 6 July 1998, the plan only provides for a capital increase of GRD 21,8 billion in order to take into account the new non-authorisied aids granted to OA on the basis of Law No 2271/94. In addition, with regard to the State guarantees, the plan provides that the State guarantees will be used for loans to be contracted before 31 December 2000.
(80) The revised restructuring plan redefines and intensifies the efforts to be made by OA in terms of cost control and productivity. It is based on new working conditions which already apply and will allow OA to reduce labour costs and improve personnel productivity. Hence, labour cost productivity is expected to increase by 16 % between 1998 and 2002. Yields, which are presently very low, will increase through rising fares, network restructuring, implementation of a yield management system and improvement of the product. The plan provides for intensive fleet utilisation while fleet growth will remain limited to four additional aircraft over the duration of the plan. However, as the fleet renewal programme will bring in smaller aircraft than those presently used, the growth in capacity offered by OA in the EEA (+ 12 % in available seat-kilometres) will not exceed the average market growth (20 to 22,5 %)(7).
(81) As a result of the above, OA is expected to return to profitability as early as 1998. By increasing revenues and reducing costs, the plan will allow OA to maintain profitability throughout its duration and cope with the large investments required by the fleet renewal programme and the move to Spata airport.
(82) While the acquisition of new aircraft (GRD 311 billion) will be financed by a mix of cash reserves, long-term loans and contracted with commercial banks and operating leases, the move to Spata will be financed by cash flow reserves (GRD 40 billion) and by a compensation to be granted by the State for the loss of investments at Hellenikon airport as a result of the closure of that airport estimated at GRD 35 billion). With regard to this compensation, Greece has confirmed to the Commission by letter of 3 July 1998 that the compensation will not involve any element of aid to OA as it will be granted on the basis of Greek common law and that the amount to be granted will strictly correspond to that which any company in a similar position would be entitled to receive. In addition, in order to allay the doubts of the Commission with regard to the timing of this compensation, Greece has also reasssured the Commission that on the basis of the agreement to be reached between OA and the Greek State, the compensation will be paid so as to coincide with the company's expenditures incurred by its move to Spata airport.
(83) In view of the investments totalling GRD 346 billion which are necessary for the future viability of the company in the case of the fleet renewal and mandatory in the case of the move to Spata airport, as Hellenikon airport will be closed in 2001, the Commission considers that, taking into account the new unauthorised aid granted to OA for an amount of GRD 13,2 billion, both the capital injection of 21,8 billion and the State guarantees for USD 378 million (or GRD 120 billion) are necessary to keep financial costs at a sustainable level throughout the period of the plan. During the period of the revised plan, the debt-equity ratio will remain higher than the typical industry average (it will reach 2,34 in 2002). However, this is in line with the important amount of investments which OA should be able to sustain as yields and revenue will substantially increase (turnover from GRD 324294 billion in 1998 to GRD 380626 billion in 2002).
(84) On this basis, given the reasonable level of the expected profits and the evolution of debt-equity ratio, the Commission considers that the level of aid approved by the initial Decision is sufficient and not excessive.
(85) With regard to the effective implementation of the revised plan, the Commission is reassured by the existence of a detailed implementation plan which supplements the revised plan. This implementation plan, by setting out the timing of the various measures, implementation costs and the timing and amounts of the planned benefits, reinforces the credibilty of the revised plan. The Commission however notes that the management information system currently in place at OA does not allow the management of the company to constantly receive adequate information which would enable it to follow the results of the implementation and further adapt the revised plan if necessary. Therefore, the Commission intends to control on the basis of a detailed report to be submitted by Greece in this regard by 1 December at the latest, whether a fully operational and adequate management information system is effectively available to the management of OA.
(86) On the basis of the above, the Commission considers that the revised plan constitutes adequate framework in order to allow OA to become viable by the year 2000 and sustain viability beyond that date.
(87) Finally, the Commission recalls the existence of the 21 commitments given by Greece in the framework of the initial Decision which, as mentioned above, are now fully complied with. These commitments remain fully applicable during the period covered by the revised restructuring plan, namely until 31 December 2002, and are necessary in order to secure the compatibility of the aid with the common market within the meaning of Article 92(3)(c) of the Treaty.
(88) However, in order to take into account the fact that the restructuring plan has been revised and extended beyond 1997 and the fact that this plan should allow OA to reach viability by the year 2000, the Commission considers that the effectiveness of the compatibility of the aid with the common market requires that the conditions resulting from the commitments are updated and precise. For this purpose:
(a) the payment of the second instalment of GRD 7,8 billion will be subject to compliance with all the conditions imposed in order to secure the compatibility of the aid with the common market and the actual implementation of the revised restructuring plan and achievement of the expected results (in particular as regards the cost and productivity ratios set out in Part VI). The instalment will not be released if the conditions are not fulfilled and/or the objectives of the revised restructuring plan are not met;
(b) at least 10 weeks before the release of the second instalment planned for 15 June 1999 and by the end of the months of October 1999, March 2000 and October 2000, Greece will be required to submit a report to the Commission on the respect of all the conditions imposed to secure the compatibility of the aid and the implementation of the revised restructuring plan and achievement of the planned results (in particular as regards the cost and productivity ratios set out in Part VI);
(c) Greece will be required to continue to ensure that OA does not act as price leader on the scheduled routes Athens-Stockholm and Athens-London during the period covered by the revised restructuring plan. There is no need to expand the scope of this obligation to other air routes operated by OA than those expressly mentioned under Article 1(p) of the initial Decision, since the Commission has not received any substantiated evidence that the fares offered by OA on other routes raise competitive concerns. With regard to the Athens-Stockholm and Athens-London routes, the Commission notes that the commitment given under Article 1(p) has been fully observed;
(d) Greece will be required to continue to ensure that during the period covered by the revised restructuring plan, the number of seats offered by OA on scheduled flights in the EEA, inlcuding additional and seasonal flights and including services between continental Greece and the Greek islands, will not exceed that offered by OA in the EEA market in 1997 (7792243 seats), taking into account however, a possible increase proportional to the growth of the market in question. The scope of this obligation is expanded as compared to Article 1(s) of the initial Decision in order to include the capacity offered by OA on domestic services to the Greek islands, thus reflecting the fact that airports in the Greek islands are no longer exempted from the application of Regulation (EEC) No 2408/92. There is no need to expand further the scope of this obligation to services to non-EEA countries since the competitive position of OA on these routes with regard to that of other Community carriers does not raise any problem. The number of routes operated by OA to non-EEA countries is limited as well as the offer of OA on these routes. Moreover, OA intends to discontinue the operation of some services (Boston, Montreal, Toronto and Nairobi).
(89) Additionally, the Commission expressly confirms that the State guarantees totalling USD 378 million for loans to be contracted before 31 December 2000 can be used either for the purchase of aircraft or the leasing of aircraft as this was the intention of the initial Decision.
IX
(90) With regard to the new non-notified aid measures on account of which the Commission decided to open the procedure as well as the additional non-notified aid measure identified in the course of this procedure, the Commission refers to the assessment made under Part VIII with regard to the respect by Greece of the commitment not to grant any further aid to OA in any form whatsoever (issues 14, 15,16 and 16a).
(91) On this basis, the Commission considers that the illegal aids involved by Articles 2(12)(a) and Article 4 of Law No 2271/94 are incompatible with the common market. However, since the effects of these aids on competition will be neutralised, the Commission considers that Greece should not be requested to recover these aids. Additionally, the Commission considers that the provisions of Article 1(b) and (i) of Law No 2271/94 and the issue of unpaid landing and parking fees by OA at Greek airports do not involve any element of aid to OA.
X
(92) The considerations set out in Parts VIII and IX address the concerns expressed by the Commission in its Decision of 30 April 1996 to open the procedure and by Member States and interested third parties in the comments they have subsequently produced.
(93) In the light of the foregoing, the Commission considers that:
(a) the aid granted and to be granted to OA by Greece in the form of:
(i) loan guarantees extended to the company until 7 October 1994 pursuant to Article 6 of Greek Law No 96/75;
(ii) new loan guarantees totalling USD 378 million for loans to be contracted before 31 December 2000 for the purchase of new aircraft;
(iii) easing of the undertaking's debt burden by GRD 427 billion;
(iv) conversion of GRD 64 billion of the undertaking's debt to equity;
(v) a capital injection of GRD 54 billion reduced to GRD 40,8 billion in three instalments of respectively GRD 19, 14 and 7,8 billion in 1995, 1998 and 1999 respectively
may benefit from the derogation provided for in Article 92(3)(c) of the Treaty and Article 61(3)(c) of the EEA Agreement provided that the conditions set out by the initial Decision pursuant to Article 1(a) to (u) are met as well as a number of other conditions so as to ensure that the aid does not adversely affect trading conditions to an extent contrary to the common interest;
(b) the illegal aids granted to OA by Greece in accordance with Article 2(12)(a) and (4) of Law No 2271/94 are incompatible with the common market. Greece is not required to order the recovery of these aids,
HAS ADOPTED THIS DECISION:
Article 1
1. The restructuring aid granted, and to be granted, by Greece to Olympic Airways in the form of:
(i) loan guarantees extended to the company until 7 October 1994 pursuant to Article 6 of Greek Law No 96/75;
(ii) new loan guarantees totalling USD 378 million for loans to be contracted before 31 December 2000 for the purchase of new aircraft;
(iii) easing of the undertaking's debt burden by GRD 427 billion;
(iv) conversion of GRD 64 billion of the undertaking's debt to equity;
(v) a capital injection of GRD 54 billion reduced to GRD 40,8 billion in three instalments of respectively GRD 19, 14 and 7,8 billion in 1995, 1998 and 1999 respectively
is deemed to be compatible with the common market and the EEA Agreement pursuant to Article 92(3)(c) of the Treaty and Article 61(3)(c) of the EEA Agreement provided that:
(a) Greece fulfils the undertakings referred to in Article 1(a) to (u) of the Commission Decision of 7 October 1994 on the aid granted by Greece to Olympic Airways;
(b) Greece ensures that OA does not act as price leader on the scheduled Athens-Stockholm and Athens-London routes during the period 1998 to 2002 inclusive;
(c) Greece ensures that until 2002 inclusive, the number of seats offered by OA on scheduled flights in the EEA, including additional and seasonal flights and including services between continental Greece and the Greek islands, will not exceed that offered by OA in the EEA market in 1997 (7792243 seats), taking into account, however, a possible increase proportional to the growth of the market in question;
(d) Greece ensures that by 1 December 1998, OA will have implemented a fully operational and adequate management information system. Greece shall submit by 1 December 1998 a report to the Commission on this matter.
2. The payment of the second instalment of GRD 7,8 billion shall be subject to compliance with all the conditions imposed in order to secure the compatibility of the aid with the common market and the actual implementation of the revised restructuring plan and achievement of the expected results (in particular as regards the cost and productivity ratios set out in Part VI).
At least 10 weeks before the release of the second instalment planned for 15 June 1999 and by the end of the months of October 1999, March 2000 and October 2000, Greece shall submit a report to the Commission on the fulfilment of all the conditions imposed to secure the compatibility of the aid and the implementation of the revised restructuring plan and achievement of the planned results (in particular as regards the cost and productivity ratios set out in Part VI). The second instalment shall not be released if the conditions are not complied with and/or the objectives of the revised restructuring plan are not met.
Article 2
The illegal aids granted to OA by Greece in accordance with Article 2(12)(a) and Article 4 of Law No 2271/94 are incompatible with the common market and the EEA Agreement by virtue of Article 92(1) of the Treaty and Article 62(1) of the EEA Agreement.
Article 3
This Decision is addressed to the Hellenic Republic.
Done at Brussels, 14 August 1998. | [
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Commission Regulation (EC) No 2084/2002
of 25 November 2002
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables(1), as last amended by Regulation (EC) No 1947/2002(2), and in particular Article 4(1) thereof,
Whereas:
(1) Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2) In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 26 November 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 25 November 2002. | [
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COUNCIL REGULATION (EEC) No 3049/90 of 22 October 1990 amending Regulation (EEC) No 2112/90 imposing a definitive anti-dumping duty on imports of certain types of electronic microcircuits known as DRAMs (dynamic random access memories) originating in Japan and collecting definitively the provisional duty
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidized imports from countries not members of the European Economic Community (1), and in particular Articles 9 and 12 thereof,
Having regard to the proposal submitted by the Commission after consultations within the Advisory Committee as provided for by the above Regulation,
Whereas:
(1) By Regulation (EEC) No 2112/90 (2) the Council imposed a definitive anti-dumping duty on imports of certain types of electronic microcircuits known as DRAMs (dynamic random access memories) originating in Japan and definitively collected the provisional duty. Article 1 (4) of, and Annex I to, the said Regulation exempt from the definitive anti-dumping duty imports of DRAMs covered by undertakings accepted by the Commission pursuant to Regulation (EEC) No 165/90 (3).
(2) As a result of inadvertent omissions in the Commission proposal, one company covered by an undertaking as referred to in point 1 has not been mentioned in Annex I to Regulation (EEC) No 2112/90 and another company was incorrectly described. For these reasons, 'Matsushita Electric Industrial Co. Ltd, Japan' should be added to the list of companies mentioned in Annex I under 'Companies affiliated to Matsushita Electronics Corporation', and 'Sharp Electronics of Canada Ltd, USA' should be replaced by 'Sharp Electronics of Canada Ltd, Canada' in the list referring to companies affiliated to Sharp Corporation, also in the said Annex.
(3) Since imports by these newly mentioned companies are covered by undertakings, these amendments should have effect as from the entry into force of Regulation (EEC) No 2112/90,
HAS ADOPTED THIS REGULATION:
Article 1
1. 'Matsushita Electric Industrial Co. Ltd, Japan' shall be added to the list of companies affiliated to Matsushita Electronics Corporations in Annex I to Regulation (EEC) No 2112/90.
2. 'Sharp Electronics of Canada Ltd, USA' is replaced by 'Sharp Electronics of Canada Ltd, Canada' in the list of companies affiliated to Sharp Corporation in Annex I to Regulation (EEC) No 2112/90.
3. The amendments referred to in paragraphs 1 and 2 shall have effect as from the entry into force of Regulation (EEC) No 2112/90.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 22 October 1990. | [
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*****
COMMISSION REGULATION (EEC) No 3548/83
of 15 December 1983
amending the Annex to Regulations (EEC) No 1559/70, (EEC) No 1560/70, (EEC) No 1561/70, (EEC) No 1562/70 and (EEC) No 55/72
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1035/72 of 18 May 1972 on the common organization of the market in fruit and vegetables (1), as last amended by Regulation (EEC) No 2004/83 (2), and in particular Article 21 (3) thereof,
Whereas the Annex to Commission Regulations:
- (EEC) No 1559/70 of 31 July 1970 laying down conditions for the supply to the animal feedingstuffs industry of fruit and vegetables withdrawn from the market (3), as last amended by Regulation (EEC) No 3481/80 (4),
- (EEC) No 1560/70 of 31 July 1970 laying down conditions for awarding contracts for obtaining juice by processing fruit and vegetables withdrawn from the market (5), as amended by Regulation (EEC) No 1936/83 (6),
- (EEC) No 1561/70 of 31 July 1970 laying down conditions for awarding contracts for distilling operations in respect of certain fruit withdrawn from the market (7), as last amended by Regulation (EEC) No 3481/80,
- (EEC) No 1562/70 of 31 July 1970 laying down conditions for the supply to the distilling industries of certain fruit withdrawn from the market (8), as last amended by Regulation (EEC) No 3481/80, and
- (EEC) No 55/72 of 12 January 1972 laying down conditions for inviting tenders for the disposal of fruit and vegetables withdrawn from the market (9), as last amended by Regulation (EEC) No 1937/83 (10),
lists the agencies appointed by the Member States to carry out the operations specified in those Regulations;
Whereas the Danish agency's address has changed and the French agency is replaced by a newly created agency and the Annex to the said Regulations should therefore be amended;
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fruit and Vegetables,
HAS ADOPTED THIS REGULATION:
Sole Article
In the Annex to Regulations (EEC) No 1559/70, (EEC) No 1560/70, (EEC) No 1561/70, (EEC) No 1562/70 and (EEC) No 55/72, the mentions concerning the appointed agencies by the Republic of France and the Kingdom of Denmark shall be replaced by the following mentions:
'Republic of France:
Office national interprofessionnel des fruits et légumes et de l'horticulture (Oniflhor),
164, rue de Javel,
F-75015 Paris
Kingdom of Denmark:
EF-Direktoratet,
Direktoratet for Markedsordningerne,
Frederiksborggade 18,
DK-1360 Koebenhavn K,
telex 15137,
tlf. 01 927000'
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 15 December 1983. | [
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COMMISSION REGULATION (EU) No 26/2010
of 12 January 2010
amending Council Regulation (EC) No 872/2004 concerning further restrictive measures in relation to Liberia
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Council Regulation (EC) No 872/2004 of 29 April 2004 concerning further restrictive measures in relation to Liberia, (1) and in particular Article 11(a) thereof,
Whereas:
(1)
Annex I to Regulation (EC) No 872/2004 lists the natural and legal persons, bodies and entities covered by the freezing of funds and economic resources under that Regulation.
(2)
On 16 December 2009, the Sanctions Committee of the United Nations Security Council decided to amend the list of persons, groups and entities to whom the freezing of funds and economic resources should apply. Annex I should therefore be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
Annex I to Regulation (EC) No 872/2004 is hereby amended as set out in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 12 January 2010. | [
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COMMISSION REGULATION (EEC) No 361/93 of 17 February 1993 derogating from Regulation (EEC) No 3518/86 on specific surveillance measures applicable to imports of orange juice
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 426/86 of 24 February 1986 on the common organization of the market in products processed from fruit and vegetables (1), as last amended by Regulation (EEC) No 1569/92 (2), and in particular Article 18 (2) thereof,
Whereas Commission Regulation (EEC) No 3518/86 (3) was last amended by Regulation (EEC) No 314/93 (4) to make imports of orange juice falling within CN code 2009 11 99 subject to the issue of an import licence;
Whereas, in order to take account of the special situation of products in transit to the Community on the date of entry into force of Regulation (EEC) No 314/93, that is on 12 February 1993, import licences applied for before 24 February 1993 for products falling within the aforementioned subheading should be issued without delay,
HAS ADOPTED THIS REGULATION:
Article 1
Notwithstanding Article 4 (2) of Regulation (EEC) No 3518/86, import licences applied for before 24 February 1993 for products falling within CN code 2009 11 99 shall be issued without delay.
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
It shall apply with effect from 12 February 1993.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 17 February 1993. | [
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Commission Regulation (EC) No 1939/2002
of 31 October 2002
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables(1), as last amended by Regulation (EC) No 1498/98(2), and in particular Article 4(1) thereof,
Whereas:
(1) Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2) In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 1 November 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 31 October 2002. | [
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COMMISSION REGULATION (EC) No 794/2006
of 29 May 2006
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables (1), and in particular Article 4(1) thereof,
Whereas:
(1)
Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2)
In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 30 May 2006.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 May 2006. | [
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COMMISSION REGULATION (EC) No 325/2008
of 10 April 2008
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules of Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (1), and in particular Article 138(1) thereof,
Whereas:
(1)
Regulation (EC) No 1580/2007 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2)
In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 138 of Regulation (EC) No 1580/2007 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 11 April 2008.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 10 April 2008. | [
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Commission Regulation (EC) No 600/2003
of 1 April 2003
granting no award with regard to beef put up for sale under the fourth invitation to tender referred to in Regulation (EC) No 219/2003
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal(1), as last amended by Commission Regulation (EC) No 2345/2001(2), and in particular Article 28(2) thereof,
Whereas:
(1) Tenders have been invited for certain quantities of beef fixed by Commission Regulation (EC) No 219/2003 of 4 February 2003 on periodical sales by tender of beef held by certain intervention agencies and intended for processing within the Community(3).
(2) Pursuant to Article 9 of Commission Regulation (EEC) No 2173/79 of 4 October 1979 on detailed rules of application for the disposal of beef bought in by intervention agencies and repealing Regulation (EEC) No 216/69(4), as last amended by Regulation (EC) No 2417/95(5), the minimum selling prices for meat put up for sale by tender should be fixed, taking into account tenders submitted.
(3) No tenders were submitted under the fourth invitation to tender by the time limit provided for by Regulation (EC) No 219/2003. Consequently, no award can be made.
(4) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
No award is made against the fourth invitation to tender held in accordance with Regulation (EC) No 219/2003 for which the time limit for the submission of tenders was 25 March 2003.
Article 2
This Regulation shall enter into force on 2 April 2003.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 1 April 2003. | [
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COMMISSION DECISION
of 26 April 2006
on state aid C 39/03 (ex NN 119/02) implemented by Greece for air carriers in respect of losses sustained from 11 to 14 September 2001
(notified under document C(2006) 1580)
(Only the Greek text is authentic)
(Text with EEA relevance)
(2010/768/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community, and in particular the first subparagraph of Article 88(2) thereof,
Having regard to the Agreement on the European Economic Area, and in particular Article 62(1)(a) thereof,
Having called on interested parties to submit their comments pursuant to the provisions cited above (1),
Whereas:
1. PROCEDURE
(1)
In accordance with Article 88(3) of the EC Treaty, in a letter to the European Commission dated 24 September 2002, registered as received on 26 September 2002 under No TREN(2002) A/66844, the Greek Ministry of Transport set out the details of a scheme to compensate for losses in the airline industry following the attacks of 11 September 2001.
(2)
Having been implemented before its formal approval by the Commission, this measure was registered as non-notified aid under No NN 119/2002. This was communicated by letter with acknowledgment of receipt sent by the Commission on 28 October 2002 (TREN(2002) D/17401).
(3)
By letter of 27 May 2003, the Commission notified Greece of its decision to initiate the procedure laid down in Article 88(2) of the Treaty in respect of this aid.
(4)
The Commission’s decision to initiate the procedure was published in the Official Journal of the European Union (2). The Commission called on interested parties to submit their comments concerning the aid in question.
(5)
The Commission received no comments from interested parties.
(6)
The Commission received the initial comments from Greece regarding the initiation of the procedure by letter of 3 December 2003, registered as received on 10 December 2003 under No SG(2003) A/12211.
(7)
Greece stated that it would be sending further information. As this failed to materialise, by letter TREN(2004) D/4128 of 15 March 2004 the Commission offered the Greek authorities one last opportunity to provide the additional information within 15 days and notified them that, if they failed to so, the Commission would take its decision on the basis of the information it already had. The Greek authorities did not reply to that letter.
2. DESCRIPTION OF THE NOTIFIED AID
(8)
As a result of the terrorist attacks in the United States on 11 September 2001, some areas of airspace were closed for several days. This was notably the case with the airspace of the United States, which was completely closed from 11 to 14 September 2001 and was reopened only gradually starting on 15 September 2001. Other countries had to take similar measures for all or part of their territory.
(9)
For this reason, during that initial period airlines had to cancel flights using the airspace concerned. They also suffered losses owing to the disruption of other traffic and the fact that some passengers were unable to complete their journeys.
(10)
Given the magnitude and suddenness of the events and the costs they caused for airlines, the Member States had to consider exceptional compensation measures.
(11)
The scheme that is the subject of this Decision provided for the payment of compensation for losses sustained by airlines from 11 to 15 September 2001; in fact, the notified scheme also provided for the payment of compensation for costs incurred after that period.
(12)
In support of their scheme, the Greek authorities argued that the closure of airspace in the United States had direct consequences for the airlines even after 14 September 2001, since on 16 September 2001 an Olympic Airways flight to New York was cancelled preventively due to a lack of information regarding the possibility to land there. There was also compensation for costs incurred on 15 September 2001.
(13)
The eligible air carriers were the air carriers holding operating licences issued by the Greek authorities pursuant to Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers (3).
(14)
The Greek authorities indicated that they consulted all eligible air carriers; only three companies submitted compensation claims after all Greek air carriers were invited to do so by letters of 24 October and 5 December 2001 sent out by the local authorities. One of them, Axon Airlines, ceased operating on 3 December 2001, before the compensation was paid out in July 2002; Greece decided not to pay compensation to this air carrier because the objective was to enable air carriers to continue their activities and prevent the costs suffered following the attacks from affecting them excessively. The other air carriers that actually received payments were Olympic Airways, hereinafter referred to as ‘OA’, and Aegean Cronus, hereinafter referred to as ‘AC’.
(15)
In their notification, the Greek authorities indicated that payments to these companies amounted to EUR 4 827 586 for OA and EUR 140 572 for AC, making up the total of EUR 4 968 158 notified on 24 September 2002. These amounts were financed, in accordance with the applicable Greek legislation, from the TASS and TAEA funds for airport development and modernisation.
(16)
The Greek authorities indicated that the companies received copies of the Commission’s letter of 14 November 2001, which constituted the basis for compensation claims.
(17)
Greece defined the losses eligible for compensation as losses sustained by air carriers and directly related to the events; they included losses of passenger revenue, losses of revenue from carriage of freight, losses due to the destruction of consignments of products which did not reach their destinations, costs occasioned by route diversion and time spent by aircraft at other airports owing to the closure of airspace, and costs of accommodation for passengers or crews.
(18)
In the notification, the losses eligible for compensation were not limited to routes directly affected by the decision taken by some countries following the events to partially close the airspace; they in fact related to the entire networks of the air carriers and the compensation was payable for the total losses incurred across the entire network.
(19)
Greece provided the Commission with information of varying degrees of detail concerning each beneficiary.
(20)
In the notification, Greece informed the Commission that the total compensation was less than 4/365 of the undertaking’s annual turnover. The compensation related not only to flights to the United States, Canada and Israel, but to the company’s entire network.
(21)
The compensated costs of GRD 1 645 000 000 (EUR 4 827 586) were broken down as follows:
1.
Revenue related to loss of passengers
These made up the rounded amount of GRD 1 390 000 000 (EUR 4 079 237), of which approximately GRD 1 234 500 000 (EUR 3 622 894) related to the period from 11 to 15 September 2001; approximately GRD 821 000 000 (EUR 2 409 393) was for losses sustained in the North Atlantic airspace; the balance of approximately GRD 413 000 000 (EUR 1 212 203) was for the rest of the company’s network, mainly the domestic and European networks, but also the Middle East, Africa, Australia and Asia.
Moreover, about GRD 150 000 000 (EUR 440 206) was for losses sustained on 16 September 2001 across the North Atlantic network.
It was indicated that the amount of the compensation was calculated by comparing traffic recorded during the specified period with that recorded by the company on the corresponding days in the previous week, with a correction for the variation noted during the corresponding period in 2000. The loss was calculated on the basis of the average fare for that period for each category of destination.
2.
Other revenue lost and costs incurred
The main items were:
(a)
losses of revenue from carriage of freight: GRD 95 000 000 (EUR 278 797);
(b)
costs related to the destruction of products: GRD 6 000 000 (EUR 17 608);
(c)
various costs related to additional safety checks: GRD 19 000 000 (EUR 55 759);
(d)
costs related to the cancellation of flights while in flight, flight diversion and grounding of aircraft in foreign countries: GRD 17 384 737 (EUR 51 019);
(e)
extraordinary costs arising from ‘ferry flights’ (4): GRD 163 000 000 (EUR 478 357);
(f)
costs of accommodation or overtime: GRD 50 000 000 (EUR 146 735).
3.
Deductions
The deductions referred to fuel savings and amounted to GRD 95 000 000 (EUR 278 797).
(22)
Greece indicated to the Commission that the total compensation was calculated on the basis of similar but, of course, much smaller losses, since this company did not operate transatlantic flights. The compensation amounted to GRD 47 900 000 (EUR 140 572).
(23)
The Commission decided to open the formal assessment procedure due to its doubts concerning the conformity of such an aid scheme with the Treaty, not only because the scheme exceeded the period specified in paragraph (35) of the Communication from the Commission to the European Parliament and the Council of 10 October 2001 entitled ‘Repercussions of the terrorist attacks in the United States on the air transport industry’ (5) (hereinafter referred to as ‘the Communication of 10 October 2001’), but also and especially because of the absence of an exceptional occurrence and because of the change in the nature of losses eligible for compensation caused by extending the period beyond 14 September 2001.
3. OBSERVATIONS SUBMITTED BY INTERESTED PARTIES
(24)
No interested third party submitted comments within the deadline of 1 month.
4. COMMENTS SUBMITTED BY GREECE
(25)
The Greek authorities did not submit any additional comments to the Commission within the deadline of 1 month specified in the letter concerning the initiation of the procedure. Their letter of 23 July 2003, registered by the Commission on 28 July under No TREN (2003) A/26329, mentioned a reply to the decision of 27 May 2003 but it referred only to the removal of confidential information which should not be published. Nevertheless, after the Commission completed the first draft of the decision, Greece finally submitted a comment on 3 December 2003. The letter stated that Greece would be submitting further information; however, although on 15 March 2004 the Commission sent Greece a new invitation to provide its additional comments, Greece has sent the additional information promised.
(26)
In their letter of 3 December 2003, the Greek authorities detailed some of the amounts notified for OA, but in a different way than in the notification; for example, they specified which amounts referred to the period from 11 to 14 September 2001 inclusive and which amounts referred to the period after 14 September 2001. They did not mention anything relating to the amount notified for AC.
1. Losses sustained by OA from 11 to 14 September 2001 inclusive
(27)
Greece reported that OA incurred losses from 11 to 14 September 2001 due to the closure of United States, Canadian and Israeli airspace. For this reason, six transatlantic flights and one flight to Israel, all round-trip flights, were cancelled; based on the list of confirmed passengers for these flights and the average revenue per passenger, Greece stated that OA suffered a loss of GRD 654 650 000 (about EUR 1 921 203), deemed to be eligible for compensation.
(28)
The Greek authorities also reported two other costs incurred by OA during this period. The first cost was related to the extended grounding of an aircraft in Canada for the entire period in question; the cost amounted to GRD 12 967 457 (about EUR 38 056). The second cost was related to the return of a flight that had left Athens for the United States on 11 September 2001, giving rise to an additional cost of GRD 1 165 600 (EUR 3 421).
(29)
The total costs presented by Greece for OA and relating to the period from 11 to 14 September 2001 thus amounted to GRD 668 783 057 (about EUR 1 962 680).
2. Losses sustained by OA after 14 September 2001
(30)
Greece reported costs incurred by OA after 14 September 2001 in connection with three round-trip transatlantic flights on 15 and 16 September 2001 (one to the United States and two to Canada). Based on the list of confirmed passengers for these flights and the average revenue per passenger, Greece stated that OA suffered a loss of GRD 333 000 000, deemed to be eligible for compensation. Greece declared that this amount was equivalent to EUR 1 270 726; this is obviously a calculation error because applying the euro area entry rate for the drachma (1 euro = 340,75 drachma) actually gives an amount of about EUR 977 257.
(31)
The flight to New York of 15 September 2001 was said to have been cancelled due to the lack of a landing slot; even though JFK Airport in New York reopened on 14 September 2001 at 23:00, Athens time, the strong demand for landing slots prevented OA from obtaining one. The Greek authorities indicated that they asked OA to provide confirmation of this situation, which was to be forwarded to the Commission. However, this failed to materialise, as the Commission did not receive any further correspondence on the matter.
(32)
The flights to Canada on 15 and 16 September 2001 were said to have been cancelled due to the late return of the aircraft blocked in that country. Greece stated that OA did not have any other long-haul aircraft available on 15 September 2001, due to its other scheduled flights. For the flight of 16 September 2001, the late return of the abovementioned aircraft did not allow enough time for carrying out the technical checks and acquiring the landing slots for the new flight to Canada, which led OA to cancel the flight.
(33)
The second type of costs incurred by OA and claimed were costs relating to the ferry flights provided by OA; there were three flights (one to the United States on 18 September 2001 and two others to Canada on 20 and 26 September 2001) which were carried out, according to the Greek authorities, as a result of the pressure exerted by the United States and Canada on OA to repatriate passengers from Athens to North America. The passengers in question had paid the normal fare, but the aeroplanes returned empty to Athens. The cost of the return flights, calculated on the basis of ‘block hours’ (the aircraft’s flying times), were said to be GRD 166 051 680 (about EUR 487 312).
(34)
The total costs presented by Greece for OA and relating to the period after 14 September 2001 thus amounted to GRD 499 051 680 (around EUR 1 464 569). All the explanations provided by Greece in the letter of 3 December 2003 thus seek to justify a compensation, for all the periods in question, of GRD 1 167 834 737 (about EUR 3 427 249).
5. ASSESSMENT OF THE AID
(35)
Pursuant to Article 87(1) of the Treaty, except where derogations provide otherwise, any aid granted by a Member State or through state resources which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods, in so far as it affects trade between Member States, is incompatible with the common market.
(36)
Grants for air carriers represent allocations of state resources in favour of those companies and therefore constitute a clear economic advantage for them.
(37)
This measure for the air transport industry had a selective character. Moreover, the air carriers receiving aid under this scheme were explicitly identified.
(38)
In the air services market, which has been liberalised since 1 January 1993 when Regulation (EEC) No 2407/92, Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes (6) and Council Regulation (EEC) No 2409/92 of 23 July 1992 on fares and rates for air services (7) entered into force, air carriers in one of the Member States are in competition with other relevant companies in other Member States. In this case, the air carriers eligible under the notification are actively operating in the Community market. The subsidies granted to them and the advantage they gained in this way affect trade between Member States and are likely to affect competition.
(39)
The measures constitute state aid and are compatible with the Treaty only if they are covered by one of the applicable derogations.
(40)
The derogations provided for in Article 87(2)(a) and (c) do not apply because this case does not involve social aid for individual consumers or aid for certain regions of the Federal Republic of Germany.
(41)
Since this case is neither aid facilitating the development of certain regions nor aid facilitating the economic development of regions where the standard of living is abnormally low or where there is serious underemployment, nor aid facilitating the development of certain economic activities or regions, the derogations provided for in subparagraphs (a) and (c) of Article 87(3) do not apply.
(42)
Finally, the derogations provided for in Article 87(3)(b) and (d), which aim respectively to promote an important project of common European interest or allow the remedying of a serious disturbance in the economy of a Member States and to promote culture and cultural heritage values, are not relevant in this case.
(43)
Pursuant to Article 87(2)(b) of the Treaty, aid compatible with the common market is: ‘aid to make good the damage caused by natural disasters or exceptional occurrences’. In its Communication of 10 October 2001, the Commission considered that the events of 11 September 2001 could be regarded as exceptional occurrences within the meaning of Article 87(2)(b) of the Treaty.
(44)
In paragraph (35) of its Communication of 10 October 2001, the Commission explained the conditions that it deemed to be necessary for compensation related to those events to comply with the conditions of Article 87(2)(b):
‘The Commission considers that the costs arising directly from the closure of American airspace between 11 and 14 September 2001 are a direct consequence of the events of 11 September 2001. They may therefore give rise to compensation by Member States in accordance with Article 87(2)(b) of the Treaty on the following conditions:
-
compensation is paid in a non-discriminatory manner to all airlines in a given Member State;
-
it concerns only the costs incurred during the days 11 to 14 September 2001 following the grounding of air traffic decided by the American authorities;
-
the amount of compensation is calculated accurately and objectively by comparing the traffic recorded by each airline during the 4 days in question with that recorded by the same airline in the preceding week, adjusted to take account of the development in the corresponding period of 2000. The maximum amount of compensation, which must take account in particular both of the actual costs incurred and those avoided, is equal to the loss of revenue duly recorded during these 4 days. It must of course be less than four 365ths of the airline’s turnover.’
(45)
The Commission notes that, even though only three air carriers formally applied for compensation for the costs incurred, all air carriers holding a public transport licence issued by the Member State in question are eligible under this scheme. The exclusion of one of them, Axon Airlines, because it had ceased operating when the letters notifying this scheme were sent out to the air carriers and, a fortiori, when the aid was paid, does not make the scheme discriminatory. The measure is therefore clearly non-discriminatory. However, the Commission notes that in their reply the Greek authorities limited themselves to providing information on costs incurred and compensation received by OA, without offering any information on AC.
(46)
The compensation described above relates mainly to the period from 11 to 14 September 2001, specified in the Commission’s Communication of 10 October 2001 and taken into account in its previous decisions in this area (8); however, the compensation also refers to the day of 15 September 2001 and even beyond.
(47)
In its Communication of 10 October 2001, the Commission approved the principle of compensation for direct repercussions of the closure of airspace decided by the American authorities. The practical details for applying the Commission’s Communication were laid down in the Commission’s letter to the Member States of 14 November 2001; the letter referred in particular to the direct relationship that has to be established between ‘the grounding of all traffic on American territory and the disruptions caused in the European sky’; in this respect, the measure, as described by the Greek authorities in their response to the initiation of the procedure, provides for limited compensation for routes or networks affected by the closure of airspace such as the airspace of North America (United States and Canada) and that of Israel. This principle was applied in previous decisions (9) adopted by the Commission in this respect.
(48)
Therefore, with regard to the period from 11 to 14 September 2001 and the losses sustained in that period, which were directly related to the closure of airspace, the measure complies with the limitations specified by the Commission and especially with the requirement that the cost eligible for compensation be directly related to the closure of airspace.
(49)
The method of calculating the operating losses eligible for compensation is based on the method that was laid down in the Commission’s Communication and whose technical calculation rules were specified in the Commission’s letter to the Member States of 14 November 2001; the loss of revenue sustained during the 4 days taken into account was determined on the basis of the passenger bookings on the cancelled flights. As regards the unit value of the loss suffered per passenger, in their reply the Greek authorities indicated that it represented the effective loss sustained by OA, amounting to GRD 654 650 000 (about EUR 1 921 203).
The additional costs eligible for compensation and relating to the extended grounding of an aircraft in Canada during the period in question, amounting to GRD 12 967 457 (about EUR 38 056) and the cost of returning to Athens a flight initially bound for the United States (on 11 September 2001), generating an additional cost of GRD 1 165 600 (EUR 3 421), were calculated using the same approach.
The ceiling of 4/365 of turnover applied by the Member State is in line with that specified by the Commission.
The Commission considers therefore that this calculation is within the maximum limit equal to the net loss of revenues recorded during those 4 days, as specified in its Communication.
(50)
Consequently, the Commission comes to the conclusion that the measures introduced by Greece in favour of OA due to the closure of airspace from 11 to 14 September 2001, amounting to GRD 668 783 057 (about EUR 1 962 680), comply with the rules laid down in its Communication of 10 October 2001; they are therefore assessed as compatible with the EC Treaty within the meaning of Article 87(2)(b).
(51)
Although the Commission, in paragraph (35) of its Communication of 10 October 2001, acknowledged the closure of airspace in the United States as an ‘exceptional occurrence’ and compensation for losses arising from that closure as compatible, it did not agree to give similar consideration to other losses indirectly related to the closure. This is especially the case with losses sustained by air carriers after the reopening of airspace on 15 September 2001.
(52)
The Commission explained in its Communication of 10 October 2001 that losses eligible for compensation must be ‘incurred … following the grounding of air traffic decided …’.
(53)
The Commission notes at the same time that after 14 September 2001 the situation was not one in which air traffic was grounded but one in which the air carriers concerned faced constraints in operating their air routes.
(54)
This is the case with the measures introduced by Greece in favour of OA and concerning mainly three transatlantic round-trip flights (one to the United States and two to Canada) that did not take place on 15 and 16 September 2001, representing a loss to OA of GRD 333 000 000 (about EUR 977 257).
(55)
As regards the lack of landing slots in New York, Greece confirmed that JFK Airport was completely reopened on 14 September 2001 at 23:00, Athens time, and that only the strong demand for landing slots prevented OA from obtaining one. The Commission has not received any other information concerning the reasons for failing to obtain a landing slot while other companies were able to do so. In any event, the general impossibility of flying to the United States did not apply any longer.
(56)
At the same time, the cancellation of the flights to Canada on 15 and 16 September 2001 was the result of choices made by OA, either because the company did not have any other long-haul aircraft available and preferred to operate other scheduled flights or because OA could not complete the technical checks and the acquisition of landing slots in due time and therefore had to cancel the flights.
(57)
As regards the ferry flights carried out by OA to the United States on 18 September 2001 and to Canada on 20 and 26 September 2001, costing GRD 166 051 680 (about EUR 487 312), the Greek authorities themselves indicated that the flights were carried out due to the pressure exercised by the United States and Canada on OA to return passengers from Athens to North America. This was therefore OA’s decision, relating to flights carried out much later than the airspace closure period. This action automatically excludes any financing from a Member State. If the flights were really commissioned by third countries, it is for OA to obtain a refund from them, if the company considers that it can achieve this.
(58)
As it has consistently stated in other decisions (10), the Commission cannot regard the indirect repercussions of the attacks of 11 September 2001, such as the difficulties encountered in operating air routes from 15 September 2001 onwards, in the same way as the direct repercussions, namely the complete closure of certain areas of the airspace until 14 September 2001 and the impossibility of operating the air routes using those areas. The indirect consequences of the attacks have affected many sectors of the global economy for a long time, some for longer than others, but by comparison with other economic or political crises these difficulties, damaging as they are, do not constitute exceptional occurrences and therefore cannot allow the application of Article 87(2)(b) of the Treaty.
(59)
The Commission therefore concludes that the scheme does not comply with the Treaty as regards the part relating to dates after 14 September 2001, especially the costs presented by Greece for OA for the period after 14 September 2001 and amounting to GRD 499 051 680 (about EUR 1 464 569), not only because the period specified in paragraph (35) of the Communication of 10 October 2001 was exceeded, but also and especially because of the absence of an exceptional occurrence and the change in the nature of the loss eligible for compensation caused by exceeding the period. This operating aid cannot be authorised under other Treaty provisions. The aid for the period after 14 September 2001 is therefore incompatible with the Treaty. The Commission notes in this respect that the total amount presented by the Greek authorities in their reply of 3 December 2003 is different from and less than that notified initially and probably paid. Therefore, any aid granted to OA in excess of the abovementioned amount of GRD 668 783 057 (about EUR 1 962 680) is incompatible with the Treaty and must be recovered.
(60)
In support of their notification, the Greek authorities cite the conclusions of the Transport Council of 16 October 2001, but the Commission notes that these are only political guidelines and are not legally binding when assessing the compatibility of aid with the Treaty. Furthermore, even though in paragraph (7) of these conclusions the Council called on the Commission, for the period after 14 September 2001, to examine ‘on a case-by-case basis the compensation which could be granted on the basis of objective criteria to make up for restrictions imposed to European airlines by the country of destination’, it also indicated that ‘any aid or compensation may not lead to distortion of competition between operators’. In the context of assessing the equal treatment of operators, which it has to ensure, the Commission notes that no other proposal concerning the days following 14 September 2001 has been accepted for air carriers in other Member States.
(61)
As regards AC, the Commission notes that Greece has never tried to provide even the slightest information justifying the payment. The Commission therefore has not received, despite its requests, any information enabling it to confirm the compatibility of this aid with the Treaty. Moreover, the Commission notes that in their notification the Greek authorities indicated that the company did not operate transatlantic flights; the Commission therefore finds it unlikely that the abovementioned necessary direct relationship between the cost eligible for compensation and the closure of airspace, provided for in the Communication of 10 October 2001, can be substantiated in the case of AC. The Commission therefore comes to the conclusion that this aid is incompatible with the Treaty and requests its repayment.
6. CONCLUSIONS
(62)
In consequence of the above, the Commission finds that Greece has illegally implemented the aid scheme in question in breach of Article 88(3) and concludes that the measure is partially incompatible with the Treaty, particularly with Article 87(2)(b), as interpreted in the Communication of 10 October 2001,
HAS ADOPTED THIS DECISION:
Article 1
The state aid implemented by Greece in favour of Olympic Airways for losses sustained by this air carrier due to the partial closure of airspace after the attacks of 11 September 2001 is compatible with the common market as regards the compensation paid for the days from 11 to 14 September 2001, up to the maximum amount of GRD 668 783 057 (about EUR 1 962 680).
Article 2
The state aid implemented by Greece in favour of Olympic Airways for losses sustained by this air carrier due to the partial closure of airspace after the attacks of 11 September 2001 is incompatible with the common market as regards the compensation paid for the period following 14 September 2001. According to the notification submitted by Greece, this compensation amounts to GRD 976 216 943 (about EUR 2 864 907).
Article 3
The state aid implemented by Greece in favour of Aegean Cronus for losses sustained by this air carrier due to the partial closure of airspace after the attacks of 11 September 2001 is incompatible with the common market. According to the notification submitted by Greece, this compensation amounts to GRD 47 900 000 (about EUR 140 572).
Article 4
1. Greece shall take all necessary measures to recover from the beneficiaries the aid referred to in Articles 2 and 3, which was unlawfully made available to them.
2. Recovery shall be effected without delay and in accordance with the procedures of national law provided that they allow the immediate and effective execution of the decision. The aid to be recovered shall include interest from the date on which it was at the disposal of the beneficiaries until the date of its recovery. Interest shall be calculated on the basis of the reference rate used for calculating the grant equivalent of regional aid.
Article 5
Within 2 months of the date on which this Decision is notified, Greece shall inform the Commission of the measures taken to comply with it.
Article 6
This Decision is addressed to the Hellenic Republic.
Done at Brussels, 26 April 2006. | [
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Commission Regulation (EC) No 1642/2001
of 10 August 2001
laying down exceptional measures on the beef and veal markets in form of private storage aid
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1254/1999 of 17 May 1999 on the common organisation of the market in beef and veal(1), as last amended by Regulation (EC) No 1512/2001(2), and in particular Article 39 thereof,
Whereas:
(1) The outbreak in Spring 2001 of foot-and-mouth disease in certain areas of the Community and the restrictions on movements of meat and animals imposed in application of the veterinary measures taken pursuant to Council Directive 85/511/EEC of 18 November 1985 introducing Community measures for the control of foot-and-mouth disease(3), as last amended by the Act of Accession of Austria, Finland and Sweden, have brought about a serious disturbance of the Community veal market. Veal calves which were ready for slaughter had to be kept in the stables awaiting the end of the movement restrictions. In order to avoid a further deterioration of the veal market when those heavier animals are coming forward for slaughter it is appropriate to provide for a private storage scheme which is likely to absorb the supplementary tonnage being produced until October where the balance is expected to return to the market.
(2) Commission Regulation (EC) 907/2000(4) lays down detailed rules for the application of Regulation (EC) No 1254/1999 as regards aid for private storage in the beef and veal sector. Provision should hereby be made to fix not only the amount of aid for a specific minimum period of storage but also the amounts to be applied if that period is extended. In the light of the urgency of this measure, the amount of aid shall be fixed in advance. The fixing of the amount of aid should in particular take into account the market value of the veal carcasses and their subsequent depreciation through freezing.
(3) With a view to increasing the market effect of the private storage arrangements, the period for placing in storage should be as short as possible.
(4) Article 3(2)(a) and Article 10 of Regulation (EC) No 907/2000 should not apply due to the age and weight of the veal animals concerned.
(5) The measures provided for in Article 5 of Council Regulation (EEC) No 565/80 of 4 March 1980 on the advance payment of export refunds in respect of agricultural productions(5), as amended by Regulation (EEC) No 2026/83(6), should not apply in order to ensure equal treatment of all products regardless of their destination.
(6) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
1. Applications for private storage aid may be introduced from 23 August until 28 September 2001 in accordance with the provisions of Regulation (EC) No 907/2000 and this Regulation.
2. Only fresh or chilled half-carcasses of bovine animals not over 270 days of age and produced in full compliance with all prevailing veterinary rules shall qualify for private storage aid.
A half-carcass shall be defined in accordance with the description referred to in Article 2(1)(b) of Council Regulation (EEC) No 1208/81(7) and shall be presented without the by-products referred to in the first subparagraph of Article 2(2) of that Regulation.
Where half-carcasses are cut into quarters, the quartering shall be carried out in a way which allows the necessary control of the eligibility requirements under the first subparagraph. With a view to acceptance for private storage, quarters shall be grouped by half-carcass when placed under the control of the intervention agency.
3. The period of storage to be included in the contract in accordance with Article 4(5)(d) of Regulation (EC) No 907/2000 shall be two months, with the possibility for the contracting operator, at his request, to prolong the storage period by one further month as a maximum.
That request must be lodged in due time before the end of the obligatory storage period. Only one prolongation per contract shall be permitted.
4. The amount of aid for the storage period of two months shall be EUR 1020 per tonne of carcass weight. If the storage period is extended in accordance with paragraph 3, the amount of aid shall be increased by a daily supplement of EUR 1,1 per tonne.
5. Article 10 of Regulation (EC) No 907/2000 shall not apply. In the case of boning, the competent authority shall take the necessary measures to control that the deboning operations are made in accordance with normal commercial practice and that all the deboned meat is stored.
Article 2
1. The minimum quantity per contract shall be 10 tonnes.
2. Notwithstanding Article 5(1) of Regulation (EC) No 907/2000 placing in storage must be completed not later than 14 days after the date of conclusion of the contract.
Article 3
Notwithstanding Article 1(1), the Commission may decide to stop the application of this Regulation where applications for private storage contracts exceed 10000 tonnes.
Article 4
1. Article 3(2)(a) of Regulation (EC) No 907/2000 shall not apply.
2. Products stored under this Regulation shall not benefit from the arrangements laid down in Article 5 of Regulation (EEC) No 565/80.
Article 5
The notifications pursuant to Article 29(2) of Regulation (EC) No 907/2000, from Member States to the Commission, shall be made by fax on one of the following numbers:
- (32-2) 295 36 13,
- (32-2) 296 60 27.
Article 6
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 10 August 2001. | [
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COUNCIL REGULATION (EEC) No 2560/76 of 20 July 1976 approving the Agreement in the form of an exchange of letters amending Tables I and II annexed to Protocol 2 to the Agreement between the European Economic Community and the Republic of Austria
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the recommendation from the Commission,
Whereas Tables I and II annexed to Protocol 2 to the Agreement between the European Economic Community and the Republic of Austria [1] should be amended and the Agreement in the form of an exchange of letters which has been negotiated to that end should be approved,
[1]OJ No L 300, 31.12.1972, p. 1.
HAS ADOPTED THIS REGULATION:
Article 1
The Agreement in the form of an exchange of letters amending Tables I and II annexed to Protocol 2 to the Agreement between the European Economic Community and the Republic of Austria is hereby approved on behalf of the Community.
The text of the Agreement is annexed to this Regulation.
Article 2
The President of the Council is hereby authorized to appoint the person empowered to sign the Agreement for the purpose of binding the Community.
Article 3
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 20 July 1976. | [
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Commission Regulation (EC) No 2556/2001
of 21 December 2001
replacing the Annex to Regulation (EEC) No 3846/87 establishing an agricultural product nomenclature for export refunds
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2200/96 of 28 October 1996 on the common organisation of the market in fruit and vegetables(1), as last amended by Regulation (EC) No 911/2001(2), and in particular Article 35(11) thereof,
Having regard to Council Regulation (EC) No 2201/96 of 28 October 1996 on the common organisation of the market in processed fruit and vegetable products(3), as last amended by Regulation (EC) No 1239/2001(4), and in particular Article 16(8) thereof,
Having regard to Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organisation of the market in cereals(5), as last amended by Regulation (EC) No 1666/2000(6), and the other regulations on the common organisation of the markets in agricultural products,
Having regard to Commission Regulation (EEC) No 3846/87 of 17 December 1987 establishing an agricultural product nomenclature for export refunds(7), as last amended by Regulation (EC) No 1502/2001(8), and in particular the last paragraph of Article 3 thereof,
Whereas:
(1) Regulation (EEC) No 3846/87 introduced an agricultural product nomenclature, based on the combined nomenclature, for use in connection with export refunds.
(2) Commission Regulation (EC) No 2031/2001(9) amended Annex I to Council Regulation (EEC) No 2658/87(10) on the tariff and statistical nomenclature and on the Common Customs Tariff with effect from 1 January 2002. As a result of the amendments to the tariffs for lemons, orange juice, grape juice and certain processed cereals, the refund nomenclature should be amended.
(3) The last paragraph of Article 3 of Regulation (EEC) No 3846/87 provides for the publication of the full version of the refund nomenclature valid at 1 January each year, as it follows from the regulatory provisions on export arrangements for agricultural products. To this end, the amendments resulting from the adoption of Commission Regulations (EC) Nos 1384/2001(11) and 1502/2001 should be taken into consideration.
(4) In the interests of clarity, the amendment of the refund nomenclature to take account of the amendments to the tariffs for lemons, orange juice, grape juice and certain processed cereals and the publication of the full version of the refund nomenclature are both carried out by means of this Regulation.
(5) The measures provided for in this Regulation regarding the amendments to the tariffs for lemons, orange juice, grape juice and certain processed cereals are in accordance with the opinion of the Management Committee for Fresh Fruit and Vegetables, the Management Committee for Products Processed from Fruit and Vegetables, the Management Committee for Wine and the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
The Annex to Regulation (EEC) No 3846/87 is hereby replaced by the Annex to this Regulation.
Article 2
This Regulation shall enter into force on 1 January 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 21 December 2001. | [
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COUNCIL REGULATION (EEC) No 2644/80 of 14 October 1980 laying down general rules for intervention with regard to the sheepmeat and goatmeat sector
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1837/80 of 27 June 1980 on the common organization of the market in sheepmeat and goatmeat (1), and in particular Article 7 (6) thereof,
Having regard to the proposal from the Commission,
Whereas Regulation (EEC) No 1837/80 provides for the possibility of intervention in the sheepmeat and goatmeat sector by the granting of private storage aid;
Whereas the functioning of such a system of aid may be facilitated by the conclusion of contracts with intervention agencies;
Whereas, to attain the objects of the aid, as defined in Regulation (EEC) No 1837/80, the level of aid must be fixed with regard to the costs incurred in storage ; whereas, for this purpose, it is appropriate to provide for two methods for determining the said level ; whereas, in both cases, the aid must be granted without discrimination among interested parties established in the Community;
Whereas appropriate measures should be laid down for cases where the market situation for the products in question necessitates amendment of the terms of contracts about to be concluded or alteration of the period of storage provided for in contracts already concluded;
Whereas Regulation (EEC) No 1837/80 provides for the possibility of intervention in the sheepmeat sector by means of buying in by the intervention agencies;
Whereas general criteria governing such buying-in should be laid down, having regard both to the objectives of the intervention system, in particular the balance between the market in question and that of competing animal products, and to the Community's financial liabilities in this connection;
Whereas, to attain the objects pursued by the grant of the variable slaughter premium for sheep referred to in Article 9 of Regulation (EEC) No 1837/80, provision shall be made that, during a given marketing year, intervention purchases, as provided for in Article 6 (1) (b) of that Regulation, may not be decided on in the Member States which apply the said premium, during that marketing year, and vice versa;
Whereas appropriate measures should be taken in relation to the application of intervention buying-in to ensure that such buying-in relates only to qualities of sheepmeat carcases in respect of which there exist prices sufficiently representative of the true market situation, pending harmonization of the systems for classifying such qualities by means of a Community classification scale;
Whereas it is necessary to provide that the buying-in prices for the various qualities must be determined on the basis of the relative value normally existing in respect of each of those qualities in each Member State where such buying-in is carried out;
Whereas provision should be made, where the measures laid down in Article 8 of Regulation (EEC) No 1837/80 are applied, the buying-in prices should be determined in the same way as those specified above,
HAS ADOPTED THIS REGULATION:
TITLE I Private storage aid
Article 1
1. Private storage within the meaning of Article 6 (1) (a) of Regulation (EEC) No 1837/80 shall mean the storing, in a warehouse, of products falling within the sheepmeat and goatmeat sector where this operation is carried out on their own account and at their own risk by natural or legal persons established in the Community other than the intervention agencies referred to in Article 6 (1) (b) of that Regulation.
(1) OJ No L 183, 16.7.1980, p. 1. 2. Private storage aid may only be granted in respect of products derived from animals originating in the Community which are stored under conditions to be determined.
3. The aid shall be granted in accordance with the terms and conditions of contracts concluded with the intervention agencies ; such contracts shall lay down the reciprocal obligations of the contracting parties under standard conditions for each product.
Article 2
Unless specially authorized, applications for private storage aid may be made only in the Member State where the product is to be stored.
Article 3
If the market situation so requires, the storage period specified in the contract may be reduced or extended under conditions to be determined.
Article 4
1. The amount of aid shall be: - either determined by means of an invitation to tender published in the Official Journal of the European Communities,
- or fixed in advance at a flat rate.
2. Equal treatment shall be given to all applicants as to the admissibility of their tender whatever their place of establishment in the Community.
Only applicants who have guaranteed the fulfilment of their obligations by lodging a security, which shall be forfeited in whole or in part if the obligations specified in the contract are not or are only partially fulfilled, shall be permitted to tender and to conclude contracts.
3. The time limit for the entry of the products into store and the length of the storage period shall be specified.
4. The amount of the aid may not normally exceed an amount equal to the costs which would be incurred if the storage were effected by the intervention agencies.
Article 5
1. In the selection of the successful tenderers, priority shall be given to those tenders which are most advantageous to the Community.
2. It may be decided, in any event, to make no award of contract.
Article 6
Where a flat rate of aid is fixed in advance: (a) a single rate shall be fixed for each product taking into account storage costs, normal deterioration in quality and, as far as possible, the foreseeable increase in the price of the product in question;
(b) applications for aid shall be granted under conditions to be determined, in particular with regard to the time between the submission of the application and the conclusion of the contract;
(c) the conclusion of storage contracts may be suspended or the terms of contracts about to be concluded may be revised if examination of the market situation, of the quantities covered by contracts and of the contract applications in hand render one of those measures necessary.
TITLE II Buying-in by the intervention agencies
Article 7
1. The qualities and presentations of the sheep carcases bought in by the intervention agencies must be determined with regard to the need to ensure adequate market support and to facilitate sale of the goods when storage ends.
2. In cases where Article 8 of Regulation (EEC) No 1837/80 is applied, the intervention measures and the products to which those measures apply must be selected with regard to the need to limit the financial burden on the Community.
Article 8
The intervention measures referred to in Article 6 (1) (b) of Regulation (EEC) No 1837/80 may be implemented only in Member States which do not at any time during a given marketing year pay the variable slaughter premium provided for in Article 9 of that Regulation.
Article 9
The intervention measures referred to in Article 6 (1) (b) of Regulation (EEC) No 1837/80 may be implemented only in Member States which apply a national carcase classification system which permits identification of the qualities which will best give market support and a representative survey of the prices fetched by those qualities.
Article 10
1. For each Member State where it has been decided to apply the intervention measures referred to in Article 6 (1) (b) of Regulation (EEC) No 1837/80, the buying-in prices for the qualities referred to in Article 7 (1) shall be fixed on the basis of the relative value normally existing in respect of each of those qualities.
2. If the measures provided for in Article 8 of Regulation (EEC) No 1837/80 are applied, the buying-in prices shall be those determined under paragraph 1.
Article 11
This Regulation shall enter into force on 20 October 1980.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 14 October 1980. | [
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Commission Regulation (EC) No 1948/2002
of 31 October 2002
amending Regulation (EEC) No 584/75 laying down detailed rules for the application of the system of tendering for export refunds on rice
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3072/95 of 22 December 1995 on the common organisation of the market in rice(1), as last amended by Regulation (EC) No 411/2002(2), and in particular Article 13(15) thereof,
Whereas:
(1) Experience gained during preceding marketing years has shown that amendments should be made to Commission Regulation (EEC) No 584/75 of 6 March 1975 laying down detailed rules for the application of the system of tendering for export refunds on rice(3), as last amended by Regulation (EC) No 299/95(4).
(2) While maintaining anonymity, tenderers should be identified by a number in order to see which ones have submitted more than one tender and at what levels.
(3) In order that the management of quantities awarded is more exact provision should be made for a coefficient for the award of quantities for tenders submitted at the level of the maximum refund, while allowing operators to fix a minimum quantity awarded below which their tenders will be considered not to have been submitted.
(4) The Management Committee for Cereals has not delivered an opinion within the time limit laid down by its chairman,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 584/75 is hereby amended as follows:
1. in Article 2(2), the following is added:
"and as appropriate
(e) in situations where the Commission fixes a coefficient for the award of quantities tendered in accordance with Article 5, a minimum quantity such that, if the quantity awarded falls short of the minimum quantity the tender shall be deemed not to have been submitted.";
2. Article 4(2) is replaced by the following:
"2. Tenderers shall be given an individual number for each weekly invitation to tender. Numbers shall be assigned on a random basis and independently on each occasion. Tenders shall be identified by their tenderer's number and communicated without delay to the Commission.";
3. in Article 5(2), the following sentence is added:"In the case of tenders submitted at the level of the maximum refund, the fixing of the latter may be accompanied by the fixing of a coefficient for the award of the quantities tendered. This latter fixing shall be adopted in accordance with the procedure referred to in paragraph 1.";
4. in Article 7, the following is inserted:
"(c) the tender is considered not to have been submitted pursuant to Article 2;
(d) the Commission shall fix an award coefficient. The amount released shall correspond to the quantity not accepted."
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 31 October 2002. | [
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Commission Regulation (EC) No 2464/2001
of 14 December 2001
amending Regulation (EC) No 1623/2000 laying down detailed rules for implementing Council Regulation (EC) No 1493/1999 on the common organisation of the market in wine with regard to market mechanisms
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine(1), as last amended by Regulation (EC) No 2826/2000(2), and in particular Articles 26, 33, 36 and 37 thereof,
Whereas:
(1) Articles 52 to 57 of Commission Regulation (EC) No 1623/2000(3), as last amended by Regulation (EC) No 2047/2001(4), lay down rules on wine obtained from grapes of varieties classified as both wine-grape varieties and varieties for other uses. Those rules must be adjusted to the real situation currently applying on the market and must be brought up to date.
(2) Regulation (EC) No 1493/1999 provides that the part of such wine not regarded as normally produced should be distilled. To avoid any doubt in application, the definition of that quantity should also be laid down explicitly.
(3) As regards wine obtained from grapes of varieties classified as both wine-grape varieties and varieties for the production of spirits distilled from wine with a designation of origin, the quantity of such wine regarded as normally produced is to be adjusted in some regions to take account of the significant fall in production of spirits distilled from wine in those regions. However, that adjustment is limited to two wine years because it is planned to conduct an in-depth study of the operation of this system in the regions concerned.
(4) As regards regions that are major producers of these wines and, as a result, are likely to distil large quantities of wine, in order to facilitate the operation of the system and control at Community level, the quantity of wine to be distilled should be determined at regional level and details of proper application of the obligation to distil by individual producers left to the Member States. In that case, firstly, distillation should therefore not be triggered until the total production intended for wine-making of the region exceeds the total quantity normally produced in the region, and secondly, to ensure that this different system can be applied by the Member States, to allow a difference between the aggregate of individual obligations and the total regional quantity to be distilled.
(5) Lastly, some articles need to be reworded.
(6) Since the measures provided for do not affect the rights of the operators concerned and must cover the entire wine year, they must be implemented from the beginning of the current wine year.
(7) The Management Committee for Wine has not delivered an opinion within the time limit set by its chairman,
HAS ADOPTED THIS REGULATION:
Article 1
Articles 52 to 57 of Regulation (EC) No 1623/2000 are replaced by the following: "Article 52
Determination of quantity normally produced
1. In the case of wine obtained from grapes of varieties classified as both wine-grape varieties and varieties for other uses as referred to in Article 28 of Regulation (EC) No 1493/1999, the total quantity normally produced shall be determined for each region concerned.
The total quantity normally produced shall comprise:
- wine products intended for the production of table wine and wine suitable for yielding table wine,
- must intended for the production of concentrated must and rectified concentrated must for the purposes of enrichment,
- must intended for the production of liqueur wines with a designation of origin,
- wine products for the production of spirits distilled from wine with a designation of origin.
The reference period shall cover the following wine years:
- 1974/75 to 1979/80 in the Community of Ten,
- 1978/79 to 1983/84 in Spain and Portugal,
- 1988/89 to 1993/94 in Austria.
However, in the case of wine obtained from grapes of varieties classified as both wine-grape varieties and varieties for the production of spirits distilled from wine with a designation of origin, the total quantity normally produced in the region during that reference period shall be reduced by the quantities that have been the subject of distillation other than that to produce spirits distilled from wine with a designation of origin in that period. Moreover, where the quantity normally produced in the region is over 5 million hl, this total quantity normally produced shall be reduced by 1,4 million hl for the 2001/02 and 2002/03 wine years.
2. In the regions referred to in paragraph 1, the quantity normally produced per hectare shall be set by the Member States concerned by determining for the same reference period referred to in that paragraph the portion of wine obtained from grapes of varieties classified in the same administrative unit as both wine-grape varieties and varieties for other uses.
From the 1998/1999 wine year, as regards wine obtained from grapes of varieties classified in the same administrative unit as both wine-grape varieties and varieties for the production of spirits from wine with a designation of origin, the Member States shall be authorised to allow producers who have received premiums from the 1997/98 wine year for the permanent abandonment of part of their vine-growing areas as provided for in Article 8 of Regulation (EC) No 1493/1999 to maintain, for the five wine years following grubbing, the quantity normally produced at the level it stood at before grubbing.
Article 53
Determination of the quantity of wine to be distilled
1. All producers subject to the distillation obligation under Article 28 of Regulation (EC) No 1493/1999 shall have distilled the total quantity of their production intended for wine-making less their quantity normally produced as defined in Article 52(2) and their quantity of exports out of the Community during the wine year in question.
In addition, producers may deduct from the quantity to be distilled resulting from that calculation a maximum quantity of 10 hl.
2. Where the quantity normally produced is greater than 5 million hl, the total quantity of wine to be distilled under Article 28 of Regulation (EC) No 1493/1999 shall be determined by the Member State for each region concerned. It shall comprise the total quantity intended for wine-making less the total quantity normally produced as defined in Article 52 and the quantity of wine exported from the Community in the wine year in question.
In those regions:
- the Member State shall apportion the total quantity of wine to be distilled in the region concerned among the individual wine producers in that region in accordance with objective criteria and without discrimination and shall inform the Commission thereof,
- distillation shall be authorised only if the total quantity intended for wine-making in the region in the wine year concerned exceeds the total quantity normally produced in the region concerned,
- for each wine year a difference of 200000 hectolitres shall be allowed between the regional quantity to be distilled and the aggregate individual quantities.
Article 54
Dates of delivery of wine for distillation
The wine shall be delivered to an approved distiller not later than 15 July of the wine year concerned.
In cases covered by Article 68 of this Regulation, the wine shall be delivered to an approved maker of wine fortified for distillation not later than 15 June of the wine year concerned.
To deduct wine from the quantity to be distilled, the wine shall be exported from the Community not later than 15 July of the wine year concerned.
Article 55
Buying-in price
1. Within three months of delivery to the distillery distillers shall pay the producers the buying-in price referred to in Article 28(3) of Regulation (EC) No 1493/1999 for the quantity delivered. That price shall apply to bulk merchandise ex producer's premises.
2. In the case of wine obtained from grapes of varieties classified as both wine-grape varieties and varieties for the production of spirits distilled from wine, in accordance with Article 28(3) of Regulation (EC) No 1493/1999, the Member States may vary the buying-in price paid to the producers subject to the distillation obligation as a function of yield per hectare. The provisions adopted by the Member States shall ensure that the average price actually paid for all wine distilled is EUR 1,34/% vol/hl.
Article 56
Aid to be paid to distillers
The aid provided for in Article 28(5)(a) of Regulation (EC) No 1493/1999 shall be fixed, in terms of alcoholic strength by volume per hectolitre of product obtained from distillation, as follows:
TABLE
Where use is made of the possibility of varying the buying-in price in accordance with Article 55(2), the aid referred to in the first paragraph shall vary by an equivalent amount.
No aid shall be payable on alcohol obtained from quantities of wine delivered for distillation that exceed by more than 2 % the amount which the producer must have distilled under Article 53 of this Regulation.
Article 57
Exceptions to the prohibition on movement of wine
Where a derogation is granted under Article 28(1) of Regulation (EC) No 1493/1999, wine covered by that Article may be moved to:
(a) a customs office for completion of customs export formalities followed by departure from the customs territory of the Community, or
(b) the premises of an approved maker of wine fortified for distillation with a view to fortification."
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.
It shall apply from 1 August 2001.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 14 December 2001. | [
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COMMISSION REGULATION (EC) No 110/2006
of 23 January 2006
introducing transitional measures on export licences for Community exports of olive oil to third countries
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 865/2004 of 29 April 2004 on the common organisation of the market in olive oil and table olives and amending Regulation (EEC) No 827/68 (1), and in particular Article 24(2) thereof,
Whereas:
(1)
Commission Regulation (EC) No 1345/2005 of 16 August 2005 laying down detailed rules for the application of the system of import licences for olive oil (2) repealed Regulation (EC) No 2543/95 of 30 October 1995 laying down special detailed rules for the application of the system of export licences for olive oil (3) with effect from 1 November 2005.
(2)
Some licences issued pursuant to Article 1 of Regulation (EC) No 2543/95 whose validity extends beyond 1 November 2005 have not been used at all or in part. If the commitments imposed by these licences are not complied with, the security lodged is forfeit. As these commitments are now devoid of purpose, they should be lifted and the securities should be released.
(3)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Olive Oil and Table Olives,
HAS ADOPTED THIS REGULATION:
Article 1
In the case of export licences issued pursuant to Regulation (EC) No 2543/95, the securities lodged shall be released, at the request of the parties concerned, provided that:
-
their validity has not expired by 1 November 2005,
-
they have been used only partially or not at all by that date.
Article 2
This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Union.
It shall apply from 1 November 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 23 January 2006. | [
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Commission Regulation (EC) No 2022/2001
of 15 October 2001
amending Regulation (EC) No 1623/2000 laying down detailed rules for implementing Council Regulation (EC) No 1493/1999 on the common organisation of the market in wine with regard to market mechanisms
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1493/1999 of 17 May 1999 on the common organisation of the market in wine(1), as last amended by Regulation (EC) No 2826/2000(2), and in particular Article 33 thereof,
Whereas:
(1) Article 63 of Commission Regulation (EC) No 1623/2000 of 25 July 2000 laying down detailed rules for implementing Council Regulation (EC) No 1493/1999 on the common organisation of the market in wine with regard to market mechanisms(3), as last amended by Regulation (EC) No 1660/2001(4), provide for the introduction of an aid scheme for the distillation of potable alcohol from wine. That scheme was first introduced for the 2000/01 wine year. Changes are required in line with experience gained in the first year of application. In particular, to ensure a more stable procedure over the course of the year, distillation should be opened in several separate tranches.
(2) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Wine,
HAS ADOPTED THIS REGULATION:
Article 1
The following subparagraph is added to paragraph 1 of Article 63 of Regulation (EC) No 1623/2000: "For the 2001/02 wine year distillation shall be opened for the period 16 October to 15 November. The maximum quantity for which the contracts or declarations referred to in Article 65 may be concluded is 7 million hl. The Commission shall subsequently open additional quantities during one or more periods to be defined in accordance with the procedure laid down in Article 75 of Regulation (EC) No 1493/1999."
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 15 October 2001. | [
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COUNCIL DECISION of 24 July 1989 concerning the provisional application of the Agreed Minute amending the Agreement between the European Economic Community and the Kingdom of Thailand on trade in textile products (89/671/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 113 thereof,
Having regard to the proposal from the Commission,
Whereas, pending the completion of the procedures necessary for its conclusion, the Agreement between the European Economic Community and the Kingdom of Thailand on trade in textile products, initialled on 28 June 1986, has been provisionally applied since 1 January 1987 in accordance, having regard to the Community, with Decision 87/460/EEC (1);
Whereas that Agreement provides for the possibility of re-examining quantitative adjustments to the quotas for certain categories, in order to allow for the introduction of the harmonized system;
Whereas, at the end of consultations between the Community and the Kingdom of Thailand an Agreed Minute amending the quota on category 7 products provided for in the Agreement was initialled on 15 December 1988;
Whereas pending the completion of the procedures necessary for the conclusion of the Agreement and the Agreed Minute, the Agreed Minute should be applied provisionally, with effect from 1 January 1988, provided that there is a reciprocal provisional application on the part of the Kingdom of Thailand,
HAS DECIDED AS FOLLOWS:
Article 1
Pending the completion of the procedures necessary for its conclusion, the Agreed Minute amending the Agreement on trade in textile products between the European Economic Community and the Kingdom of Thailand shall be applied provisionally in the Community, with effect from 1 January 1988, provided that there is reciprocal provisional application on the part of the Kingdom of Thailand.
The text of the Agreed Minute is attached to this Decision.
Article 2
The Commission is invited to seek the agreement of the Government of the Kingdom of Thailand on the provisional application of the Agreed Minute referred to in Article 1 and to notify the Council thereof.
Done at Brussels, 24 July 1989. | [
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Commission Regulation (EC) No 53/2002
of 11 January 2002
fixing the maximum export refund on wholly milled round grain rice in connection with the invitation to tender issued in Regulation (EC) No 2007/2001
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3072/95 of 22 December 1995 on the common organisation of the market in rice(1), as last amended by Regulation (EC) No 1987/2001(2), and in particular Article 13(3) thereof,
Whereas:
(1) An invitation to tender for the export refund on rice was issued pursuant to Commission Regulation (EC) No 2007/2001(3).
(2) Article 5 of Commission Regulation (EEC) No 584/75(4), as last amended by Regulation (EC) No 299/95(5), allows the Commission to fix, in accordance with the procedure laid down in Article 22 of Regulation (EC) No 3072/95 and on the basis of the tenders submitted, a maximum export refund. In fixing this maximum, the criteria provided for in Article 13 of Regulation (EC) No 3072/95 must be taken into account. A contract is awarded to any tenderer whose tender is equal to or less than the maximum export refund.
(3) The application of the abovementioned criteria to the current market situation for the rice in question results in the maximum export refund being fixed at the amount specified in Article 1.
(4) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
The maximum export refund on wholly milled round grain rice to be exported to certain third countries pursuant to the invitation to tender issued in Regulation (EC) No 2007/2001 is hereby fixed on the basis of the tenders submitted from 4 to 10 January 2002 at 203,00 EUR/t.
Article 2
This Regulation shall enter into force on 12 January 2002.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 11 January 2002. | [
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COMMISSION REGULATION (EC) No 3172/93 of 18 November 1993 on the sale by the procedure laid down in Regulation (EEC) No 2539/84 of beef held by certain intervention agencies for the production of minced meat
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 805/68 of 27 June 1968 on the common organization of the market in beef and veal (1), as last amended by Regulation (EEC) No 125/93 (2), and in particular Article 7 (3) thereof,
Whereas Commission Regulation (EEC) No 2539/84 of 5 September 1984 laying down detailed rules for certain sales of frozen beef held by the intervention agencies (3), as last amended by Regulation (EEC) No 1759/93 (4), has provided for the possibility of applying a two-stage procedure when selling beef from intervention stocks;
Whereas the application of intervention measures in respect of beef has created large stocks in several Member States; whereas, in order to prevent an excessive prolongation of storage, part of those stocks should be sold in accordance with Regulation (EEC) No 2539/84;
Whereas Community supplies of meat suitable for the production of minced meat are relatively small; whereas to ensure efficient management of the markets, sales of intervention stocks should be limited to producers of minced meat approved in accordance with Article 7 of Council Directive 88/657/EEC of 14 December 1988 laying down the requirements for the production of, and trade in, minced meat, meat in pieces of less than 100 grams and meat preparations and amending Directives 64/433/EEC, 71/118/EEC and 72/462/EEC (5), as last amended by Directive 92/110/EEC (6);
Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
1. The sale shall take place of approximately 5 100 tonnes of boneless beef held by the intervention agency of the United Kingdom, bought in after 1 October 1992. Detailed information concerning quantities is given in Annex I.
2. The products referred to in paragraph 1 shall be sold in accordance with Regulation (EEC) No 2539/84 thereof, and this Regulation.
Article 2
1. The qualities and the minimum prices referred to in Article 3 (1) of Regulation (EEC) No 2539/84 are given in Annex I hereto.
2. Only those tenders shall be taken into consideration which reach the intervention agency concerned not later than 12 noon on 24 November 1993.
3. Particulars of the quantities and the places where the products are stored shall be available to interested parties at the address given in Annex II.
Article 3
1. Tenders shall only be accepted when submitted by a natural or legal person entered on the list of establishments referred to in the first subparagraph of Article 7 (1) of Directive 88/657/EEC as a producer of minced meat. Member States shall consult with each other where necessary for the application of this paragraph.
2. Tenders must be accompanied by:
- a written undertaking by the tenderer to use all the meat concerned for the production of minced meat as defined by Article 2 (2) (a) of Directive 88/657/EEC within four months of the date of conclusion of the contract of sale with the intervention agency,
- details of the exact location of the establishment or establishments of the tenderer in which the minced meat is to be produced.
3. The purchasers shall keep up-to-date accounts records permitting the use made of the meat purchased to be established with a view, in particular, to verifying that the quantities purchased and the quantities of minced meat produced correspond. For the purposes of administrative supervision, where appropriate the intervention agency holding the products concerned shall send the competent authority of the Member State in which the minced meat is to be produced a certified copy of the sales contract.
4. Any purchaser who does not submit the documentation required to prove compliance with the undertaking referred to in paragraph 2 to the competent authority of the Member State in which the minced meat is produced within four months of the date of conclusion of the contract of sale with the intervention agency shall, except in cases of force majeure, be excluded from any sales operations of the same type which may be held in the 12 months following the said date.
On a duly substantiated request, the abovementioned period may be extended by one month where the purchaser is unable to supply the necessary proof having taken all the necessary steps to obtain it and submit it within the time limit laid down.
Article 4
The security provided for in Article 5 (1) of Regulation (EEC) No 2539/84 shall be ECU 30 per 100 kilograms.
Article 5
This Regulation shall into force on the day of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 November 1993. | [
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COMMISSION DECISION
of 26 March 2007
amending Decision 2006/594/EC fixing an indicative allocation by Member State of the commitment appropriations for the Convergence Objective for the period 2007 to 2013 as concerns Bulgaria and Romania
(notified under document number C(2007) 1290)
(2007/191/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions for the European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing Regulation (EC) No 1260/1999 (1), and in particular Article 18(2) thereof,
Whereas:
(1)
By Decision 2006/594/EC (2), the Commission fixed an indicative allocation by Member State of the commitment appropriations for the Convergence Objective for the period 2007 to 2013.
(2)
Following the accession of Bulgaria and Romania, the indicative amounts of the commitment appropriations for the regions eligible to benefit from Structural Funds under the Convergence Objective, should be fixed for those Member States.
(3)
Decision 2006/594/EC should therefore be amended accordingly.
(4)
For reasons of clarity and legal certainty, this Decision should apply from the date of accession of Bulgaria and Romania,
HAS ADOPTED THIS DECISION:
Article 1
Decision 2006/594/EC is amended as follows:
1.
Annex I is replaced by Annex I to this Decision.
2.
Annex III is replaced by Annex II to this Decision.
Article 2
This Decision shall apply from 1 January 2007.
Article 3
This Decision is addressed to the Member States.
Done at Brussels, 26 March 2007. | [
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COMMISSION DECISION of 24 July 1997 on the approval of the single programming document for Community structural assistance in the region of Piedmont concerned by Objective 2 in Italy (Only the Italian text is authentic) (97/769/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 4253/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (1), as last amended by Regulation (EC) No 3193/94 (2), and in particular Article 10 (1) last subparagraph thereof,
After consultation of the Advisory Committee on the Development and Conversion of Regions and the Committee pursuant to Article 124 of the Treaty,
Whereas the programming procedure for structural assistance under Objective 2 is defined in Article 9 (6) to 9 (10) of Council Regulation (EEC) No 2052/88 of 24 June 1988 on the tasks of the Structural Funds and their effectiveness and on coordination of their activities between themselves and with the operations of the European Investment Bank and the other existing financial instruments (3), as last amended by Regulation (EC) No 3193/94; whereas however the last subparagraph of Article 5 (2) of Regulation (EEC) No 4253/88 foresees that in order to simplify and to speed up programming procedures, Member States may submit in a single programming document the information required for the regional and social conversion plan referred to in Article 9 (8) of Regulation (EEC) No 2052/88 and the information required at Article 14 (2) of Regulation (EEC) No 4253/88; whereas Article 10 (1) last subparagraph of Regulation (EEC) No 4253/88 foresees that in that case the Commission adopt a single decision in a single document covering the points referred to in Article 8 (3) and the assistance from the Funds referred to in the last subparagraph of Article 14 (3);
Whereas the Commission has established, by Decision 96/472/EC (4), the list of declining industrial areas concerned by Objective 2 for the programming period from 1997 to 1999;
Whereas the global maximum allocation foreseen for the assistance of the Structural Funds for the present single programming document is composed of resources coming from the indicative allocation of Structural Fund commitment appropriations for the period 1997 to 1999 under Objective 2 resulting from Commission Decision 96/468/EC (5) and from unused appropriations of ECU 64,495 million of the corresponding single programming document covering the period 1994 to 1996, pursuant to Commission Decision C(96) 4173/2 of 18 December 1996;
Whereas the Italian Government has submitted to the Commission on 8 August 1996 the single programming document as referred to in Article 5 (2) of Regulation (EEC) No 4253/88 for the region of Piedmont; whereas this document contains the elements referred to in Article 9 (8) of Regulation (EEC) No 2052/88 and in Article 14 (2) of Regulation (EEC) No 4253/88; whereas expenditure under this single programming document is eligible as from that date;
Whereas the single programming document submitted by this Member State includes a description of the conversion priorities selected and the applications for assistance from the European Regional Development Fund (ERDF) and the European Social Fund (ESF) as well as an indication of the planned use of the assistance available from the European Investment Bank (EIB) and the other financial instruments in implementing the single programming document;
Whereas, in accordance with Article 3 of Regulation (EEC) No 4253/88, the Commission is charged with ensuring, within the framework of the partnership, coordination and consistency between assistance from the Funds and assistance provided by the EIB and the other financial instruments;
Whereas the EIB has been involved in the drawing up of the single programming document in accordance with the provisions of Article 8 (1) of Regulation (EEC) No 4253/88, applicable by analogy in the establishment of the single programming document; whereas it has declared itself prepared to contribute to the implementation of this document in conformity with its statutory provisions; whereas, however, it has not yet been possible to evaluate precisely the amounts of Community loans corresponding to the financial needs;
Whereas Article 2 second subparagraph of Commission Regulation (EEC) No 1866/90 of 2 July 1990 on arrangements for using the ecu for the purpose of the budgetary management of the Structural Funds (6), as last amended by Regulation (EC) No 2745/94 (7), stipulates that in the Commission decisions approving a single programming document, the Community assistance available for the entire period and the annual breakdown thereof shall be set out in ecus at prices for the year in which each decision is taken and shall be subject to indexation; whereas this annual breakdown must be compatible with the progressive increase in the commitment appropriations shown in Annex II to Regulation (EEC) No 2052/88; whereas indexation is based on a single rate per year, corresponding to the rates applied annually to budget appropriations on the basis of the mechanism for the technical adjustment of the financial perspectives;
Whereas Article 1 of Council Regulation (EEC) No 4254/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the European Regional Development Fund (8), as amended by Regulation (EEC) No 2083/93 (9), defines the measures for which the ERDF may provide financial support;
Whereas Article 1 of Council Regulation (EEC) No 4255/88 of 19 December 1988 laying down provisions for implementing Regulation (EEC) No 2052/88 as regards the European Social Fund (10), as amended by Regulation (EEC) No 2084/93 (11), defines the measures for which the ESF may provide financial support;
Whereas the single programming document has been established in agreement with the Member State concerned through the partnership defined in Article 4 of Regulation (EEC) No 2052/88;
Whereas Article 9 (3) of Regulation (EEC) No 4253/88 lays down that Member States shall provide the relevant financial information to the Commission to permit verification of the respect of the principle of additionality; whereas the analysis, in the framework of partnership, of the information provided for by the authorities of Italy has not yet allowed this verification; whereas payments should therefore be suspended after the first advance provided for in Article 21 (2) of the said Regulation until the Commission has verified the respect of the additionality;
Whereas the present assistance satisfies the conditions laid down in Article 13 of Regulation (EEC) No 4253/88, and so should be implemented by means of an integrated approach involving finance from more than one Fund;
Whereas Article 1 of the Financial Regulation of 21 December 1977 applicable to the general budget of the European Communities (12), as last amended by Regulation (EC, Euratom, ECSC) No 2335/95 (13), states that the legal commitments entered into for measures extending over more than one financial year must contain a time limit for implementation which must be specified to the recipient in due form when the aid is granted;
Whereas it is appropriate to mention that this Decision is ruled by the provisions on the eligibility of expenditure laid down in the Annex to Commission Decision C(97) 1035/6 of 23 April 1997 modifying the decisions approving the Community support frameworks, the single programming documents and the Community initiative programmes in respect of Italy;
Whereas all the other conditions laid down for the grant of aid from the ERDF and the ESF have been complied with,
HAS ADOPTED THIS DECISION:
Article 1
The single programming document for Community structural assistance in the region of Piedmont concerned by Objective 2 in Italy, covering the period 1 January 1997 to 31 December 1999, is hereby approved.
Article 2
The single programming document includes the following essential elements:
(a) a statement of the main priorities for joint action, their specific quantified objectives, an appraisal of their expected impact and their consistency with economic, social and regional policies in Italy;
the main priorities are:
1. development and strengthening of SMEs,
2. tourism,
3. dissemination of technological innovation and the information society,
4. environment and sustainable development,
5. urban regeneration and spatial planning,
6. integrated projects in support of economic development,
7. human resources,
8. technical assistance;
(b) the assistance from the Structural Funds as referred to in Article 4;
(c) the detailed provisions for implementing the single programming document comprising:
- the procedures for monitoring and evaluation,
- the provisions on financial implementation,
- the rules for compliance with Community policies;
(d) the procedures for verifying additionality;
(e) the arrangements for associating the environmental authorities with the implementation of the single programming document;
(f) the means available for technical assistance necessary for the preparation, implementation or adaptation of the measures concerned.
Article 3
1. For the purpose of indexation, the annual breakdown of the global maximum allocation foreseen for the assistance from the Structural Funds is as follows:
TABLE
2. To this global maximum allocation is added an amount of ECU 64,495 million not subject to indexation, resulting from unused appropriations of the corresponding single programming document covering the period 1994 to 1996.
Article 4
The assistance from the Structural Funds granted to the single programming document amounts to a maximum of ECU 309,495 million.
The procedure for granting the financial assistance, including the financial contribution from the Funds to the various priorities and measures, is set out in the financing plan and the detailed implementing provisions which form an integral part of the single programming document.
The national financial contribution envisaged, which is approximately ECU 494 million for the public sector and ECU 173 million for the private sector, may be met in part by Community loans, in particular from the EIB.
Article 5
1. The breakdown among the Structural Funds of the total Community assistance available is as follows:
- ERDF: ECU 259,918 million,
- ESF: ECU 49,577 million.
2. The budgetary commitments for the first instalment
- ERDF: ECU 83,174 million,
- ESF: ECU 15,866 million.
Commitments of subsequent instalments will be based on the financing plan for the single programming document and on progress in its implementation.
3. Payments subsequent to the first advance provided for in Article 21 (2) of Regulation (EEC) No 4253/88 shall be subject to confirmation by the Commission of the respect of the principle of additionality on the basis of the relevant information supplied by the Member State.
Article 6
The breakdown among the Structural Funds and the procedure for the grant of the assistance may be altered subsequently, subject to the availability of funds and the budgetary rules, in the light of adjustments decided according to the procedure laid down in Article 25 (5) of Regulation (EEC) No 4253/88.
Article 7
The Community aid concerns expenditure on operations under the single programming document which, in the Member State concerned, are the subject of legally binding commitments and for which the requisite finance has been specifically allocated no later than 31 December 1999. The final date for taking account of expenditure on these measures is 31 December 2001.
Article 8
The single programming document shall be implemented in accordance with Community law, and in particular Articles 6, 30, 48, 52 and 59 of the Treaty and the Community Directives on the coordination of procedures for the award of contracts.
Article 9
This Decision is ruled by the provisions laid down in the Annex to Decision C(97) 1035/6.
Article 11
This Decision is addressed to the Italian Republic.
Done at Brussels, 24 July 1997. | [
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COMMISSION REGULATION (EC) No 174/2008
of 27 February 2008
amending Commission Regulation (EC) No 994/2007 imposing a provisional anti-dumping duty on imports of ferro-silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (1) (the basic Regulation), and in particular Article 8 thereof,
After consulting the Advisory Committee,
Whereas:
(1)
On 30 November 2006, the Commission announced, by a notice published in the Official Journal of the European Union (2), the initiation of an anti-dumping proceeding with regard to imports into the Community of ferro-silicon (FeSi) originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia.
(2)
The Commission, by Regulation (EC) No 994/2007 (3) imposed a provisional anti-dumping duty on imports of FeSi, currently classifiable within CN codes 7202 21 00, 7202 29 10 and 7202 29 90, originating in the People's Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia. The measures applicable to these imports consist of an ad valorem duty, except for an exporting producer in the Former Yugoslav Republic of Macedonia from which an undertaking was accepted in the said Regulation.
(3)
In the context of the examination on whether the price undertaking continues to be practical, it was found that FeSi prices continued to fluctuate after the imposition of the provisional measures and the acceptance of the undertaking. Overall, it was found that FeSi prices showed a considerable volatility. Due to the above described volatility of the price, it was concluded that the fixed minimum import prices (MIPs) of the undertaking are no longer a valid form of measure in view of the findings made during the investigation.
(4)
In order to overcome this problem, the possibility to index the MIPs to the price of the main cost input was examined. It was concluded, however, that the volatility in prices on the market cannot be merely explained by an increase in the price of the main cost input, thus it is not possible to index the minimum import prices. Therefore, it was concluded that the undertaking in its current form, namely with fixed minimum prices is not workable any longer and that the problem posed by the fixed character of the minimum price would not be remedied by means of price indexation. Therefore, it was concluded that FeSi is not considered anymore suitable for a fixed price undertaking (see also recitals 131 and 132 of Council Regulation (EC) No 172/2008 (4)) and that the acceptance of the undertaking offered by the company concerned should be withdrawn.
(5)
The company concerned was informed of the Commission's conclusions and given an opportunity to comment.
(6)
The company claimed that the Commission's reasoning for the withdrawal of the undertaking contradicts its Community interest analysis whereby it stated in its disclosure to the company that ‘while the information available shows that FeSi prices have indeed followed an upward trend in the months following the IP, the prices for major cost inputs of FeSi have also increased in the same period’.
(7)
In this respect, it is noted that the above statement, as confirmed in recital 106 of Regulation (EC) No 172/2008, does not establish a correlation between the price evolution of FeSi and the cost of inputs but was intended to explain the economic situation of the Community industry. Indeed, in accordance with the Commission established practice regarding indexation of the MIPs, the MIPs can be indexed only in cases where the price of the product subject to the undertaking varies depending on the main input. In this particular case, the cost of the main input (electricity) did not show a strong correlation with the increase of the price of FeSi. Even if there had been correlation between the prices of FeSi and its main input, in view of the divergent electricity prices on different markets, no suitable source of information regarding electricity prices exists as a basis to index a MIP, contrary to commodity prices for other products such as oil. Moreover, other raw materials such as coke and quartzite also constitute major but variant components of the cost of production of FeSi. Therefore, if the MIPs were indexed to the price of each of these inputs, complex indexing formulae would have to be established making the determination of the parameters of indexation and the workability of the undertakings extremely complex. Therefore, it was concluded that it is not possible to index the minimum import prices to the price of the main cost input, thus the company's claim was rejected accordingly.
(8)
The company further claimed that it is against the practice of the Commission to change the level or the form of the measure provisionally determined and/or proposed at definitive stage on the basis of information that covers a period which is subsequent to the IP. In accordance with the clauses of the undertaking, the company was made aware that the Commission may withdraw the acceptance of the undertaking at any stage during its implementation due to changed circumstances from those prevailing at the time of acceptance of the undertaking or because the monitoring and enforcement of the undertaking prove to be impractical and a solution which is acceptable to the Commission is not found. On this basis, the claim was rejected.
(9)
The company also claimed that the Commission came to a wrong conclusion in its assessment of the effectiveness of the undertaking partially because it used unverified post-IP data. In this respect, it is noted that the Commission followed its regular practice as it primarily used Eurostat data for its analysis as well as the periodic undertaking report submitted by the company. Accordingly, this claim was rejected.
(10)
Therefore, in accordance with Article 8(9) of the basic Regulation and also in accordance with the relevant clauses of the undertaking, which authorise the Commission to unilaterally withdraw the acceptance of the undertaking, the Commission has concluded that the acceptance of the undertaking offered by Silmak Dooel Export Import, Jegunovce should be withdrawn.
(11)
In parallel to the current Regulation, the Council, by Regulation (EC) No 172/2008, has imposed a definitive anti-dumping duty on imports of ferro-silicon originating, inter alia, in the former Yugoslav Republic of Macedonia, which will be applicable to the imports of these products manufactured by the exporting producer concerned,
HAS ADOPTED THIS REGULATION:
Article 1
The acceptance of the undertaking offered by Silmak Dooel Export Import, Jegunovce in connection with the anti-dumping proceeding concerning imports of ferro-silicon originating, inter alia, in the former Yugoslav Republic of Macedonia is hereby withdrawn.
Article 2
Article 2 of Commission Regulation (EC) No 994/2007 is hereby repealed.
Article 3
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 February 2008. | [
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*****
COUNCIL REGULATION (EEC) No 2094/87
of 13 July 1987
amending Regulation (EEC) No 2731/75 fixing standard qualities for common wheat, rye, barley, maize, sorghum and durum wheat
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 43 thereof,
Having regard to Council Regulation (EEC) No 2727/75 of 29 October 1975 on the common organization of the market in cereals (1), as last amended by Regulation (EEC) No 1900/87 (2), and in particular Article 3 (5) thereof,
Having regard to the proposal from the Commission (3),
Having regard to the opinion of the European Parliament (4),
Whereas, in view of the increase in production and consumption of durum wheat, more stringent quality conditions must be applied for the purposes of intervention; whereas this implies the prior modification of the standard quality; whereas, therefore, the requirements relating to moisture content and specific weight for durum wheat should be reinforced and technological criteria should be included in the definition of the standard quality for that cereal; whereas Regulation (EEC) No 2731/75 (5), as last amended by Regulation (EEC) No 1580/86 (6), should be amended,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 2731/75 is hereby amended as follows:
1. Article 5 is replaced by the following:
'Article 5
The standard quality for which the target price and the intervention price for durum wheat are fixed is defined as follows:
1. Physical quality criteria:
(a) durum wheat of a sound, genuine and merchantable quality, free from abnormal smell and live pests, amber yellow to brown in colour, with a vitreous section of translucent, horny appearance;
(b) total percentage of matter other than durum wheat grains of unimpaired quality: 25 %, of which:
- percentage of durum wheat grains which have wholly or partly lost their vitreous aspect (mitadiné): 20 %,
- percentage of broken grains: 2 %,
- percentage of grain impurities: 2 % (''grain impurities" means shrivelled grains, grains of other cereals, grains damaged by pests, grains showing discoloration of the germ, mottled grains, grains affected with fusariosis and grains overheated during drying),
- percentage of sprouted grains: 0,5 %,
- percentage of miscellaneous impurities: 0,5 % ("miscellaneous impurities" means extraneous seeds, damaged grains, extraneous matter, husks, ergot, decayed grains, dead insects and fragments of insects);
(c) specific weight: 80 kilograms per hectolitre:
(d) moisture content: 13 %.
2. Technological quality criteria:
(a) protein content (N × 5,7) not less than 12,5 % of dry matter;
(b) gluten content not less than 8,75 % of dry matter;
(c) Hagberg falling number not less than 250, including 60 seconds preparation (agitation) time.'
2. In Article 6, point (b) is replaced by the following:
'(b) the methods required for determining:
- matter other than basic cereals of unimpaired quality,
- moisture content,
- durum wheat grains which have lost their vitreous aspects (mitadiné),
- tannia content,
- the machinability of the dough,
- the protein content,
- the gluten content,
- the Zélény index,
- the Hagberg falling number,
shall be drawn up in accordance with the procedure laid down in Article 26 of Regulation (EEC) No 2727/75.'
3. In the Annex, at point 2 (b), the second sentence is deleted.
4. In the Annex, point 2 (d) is replaced by the following:
'(d) Grains showing discoloration of the germ, mottled grains and grains affected with fusariosis. Grains showing discoloration of the germ are those of which the tegument is coloured brown to brownish black and of which the germ is normal and not sprouting. For common wheat, grains showing discoloration of the germ are disregarded up to 8 %.
For durum wheat,
- mottled grains are grains which show brown to brownish black discoloration on parts other than the germ,
- grains affected with fusariosis are grains whose pericarp is contaminated with Fusarium mycelium; such grains look slightly shrivelled, wrinkled and have pink or white diffuse patches with an ill-defined outline.'
5. In the Annex, the following point is added:
'6. Grains which have lost their vitreous aspect (mitadiné)
Mitadiné grains of durum wheat are grains whose kernel cannot be regarded as entirely vitreous.'
Article 2
This Regulation shall enter into force on the day of its publication in the Official Journl of the European Communities.
It shall apply with effect from 1 July 1987.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 13 July 1987. | [
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COMMISSION REGULATION (EC) No 571/2008
of 19 June 2008
amending Annex III to Regulation (EC) No 999/2001 of the European Parliament and of the Council as regards the criteria for revision of the annual monitoring programmes concerning BSE
(Text with EEA relevance)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Regulation (EC) No 999/2001 of the European Parliament and of the Council of 22 May 2001 laying down rules for the prevention, control and eradication of certain transmissible spongiform encephalopathies (1), and in particular the first paragraph of Article 23 thereof,
Whereas:
(1)
Regulation (EC) No 999/2001 lays down rules for the prevention, control and eradication of transmissible spongiform encephalopathies (TSEs) in animals. It provides that each Member State is to carry out an annual monitoring programme for TSEs based on active and passive surveillance.
(2)
Article 6(1b) of Regulation (EC) No 999/2001 provides that Member States which can demonstrate the improvement of the epidemiological situation on their territory may apply for their annual monitoring programmes to be revised.
(3)
Several Member States in which a positive trend in the epidemiological situation as regards bovine spongiform encephalopathy (BSE) has been observed, have expressed interest in having their annual BSE monitoring programme revised. In order to allow those Member States to submit to the Commission a request to revise their BSE monitoring programmes, it is necessary to lay down the criteria for demonstrating an improvement in the BSE epidemiological situation.
(4)
Those criteria are epidemiological indicators aiming to assess in a quantified manner the evolution of the BSE situation in Member States over the years.
(5)
For the sake of clarity and consistency, those criteria should be laid down in Annex III to Regulation (EC) No 999/2001.
(6)
Regulation (EC) No 999/2001 should therefore be amended accordingly.
(7)
The measures provided for in this Regulation are in accordance with the opinion of the Standing Committee on the Food Chain and Animal Health,
HAS ADOPTED THIS REGULATION:
Article 1
Annex III to Regulation (EC) No 999/2001 is amended in accordance with the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 19 June 2008. | [
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COUNCIL REGULATION (EC) No 72/2009
of 19 January 2009
on modifications to the Common Agricultural Policy by amending Regulations (EC) No 247/2006, (EC) No 320/2006, (EC) No 1405/2006, (EC) No 1234/2007, (EC) No 3/2008 and (EC) No 479/2008 and repealing Regulations (EEC) No 1883/78, (EEC) No 1254/89, (EEC) No 2247/89, (EEC) No 2055/93, (EC) No 1868/94, (EC) No 2596/97, (EC) No 1182/2005 and (EC) No 315/2007
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 36 and 37 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament (1),
After consulting the European Economic and Social Committee (2),
After consulting the Committee of the Regions (3),
Whereas:
(1)
The reforms of the Common Agricultural Policy (CAP) agreed in 2003 and 2004 included provisions for reports to gauge their effectiveness, and in particular to appraise their impact with respect to their objectives and to analyse their effects on the relevant markets. In this context, the Commission presented a Communication to the European Parliament and Council entitled ‘Preparing for the “Health Check” of the CAP reform’ on 20 November 2007. That Communication and the subsequent discussions of its main elements by the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, as well as numerous contributions arising from public consultation should be taken into account.
(2)
The provisions of the CAP concerning public intervention should be simplified and aligned by extending tendering in order to achieve a harmonised approach insofar as possible. In particular, the respect of maximum quantities and quantitative limits for cereals, butter and skimmed milk powder may require rapid action. In order to provide for this, and since closing buying-in at a fixed price, adopting allocation coefficients and, for common wheat, switching to the tendering procedure, do not involve the exercise of discretion, the Commission should be permitted to do so without the assistance of the Committee.
(3)
In respect of cereals intervention, the system should be adjusted to ensure competitiveness and market orientation for the sector, while keeping the role of intervention as a safety net in the event of market disruptions and facilitating farmers' response to market conditions. Upon adoption by the Council of Regulation (EC) No 735/2007 (4), which reformed the intervention system for maize the Commission undertook to review the cereals intervention system, on the basis of an analysis which revealed some degree of risk for additional barley intervention if prices were low. The present outlook for cereals has, however, since changed significantly, and is characterised by a favourable world market price environment driven by expanding world demand and low global cereal stocks. Within this context, intervention levels should be set at zero for other feed grains. This would allow for intervention without having negative implications for the cereals market as a whole. The favourable outlook for the cereals sector also applies to durum wheat. This means that buying into intervention has currently lost its relevance since market prices are significantly above the intervention price. Therefore, buying into intervention for durum wheat is not currently necessary and intervention levels should be set at zero. Since intervention for cereals should be a safety net rather than an element which influences price formation, the differences in harvesting periods across Member States, which effectively start the marketing years, are no longer relevant since the system will no longer provide for prices reflecting intervention levels plus monthly increments. In the interests of simplification, the dates for cereals intervention should therefore be harmonised across the Community.
(4)
Since the 2003 CAP reform, the competitiveness of the rice sector has increased, with stable production, falling stocks in view of increasing demand both in the Community and on the world market, and with the expected price significantly above the intervention price. Therefore buying into intervention for rice is not currently necessary and intervention levels should be set at zero.
(5)
Pigmeat production and consumption are projected to increase over the medium term, though at a slower pace than in the past decade, due to the competition from poultry meat and higher feed prices. Pigmeat prices are expected to remain significantly above the intervention price. Buying into intervention has not been used for many years for pigmeat and, in the light of the market situation and its perspectives, the possibility of buying into intervention should therefore be abolished.
(6)
Since the current market situation and perspectives suggest that intervention would not, in any case, be applicable to pigmeat, durum wheat and rice in 2009, the changes to or abolition of intervention for these products should be carried out from the 2009/2010 marketing year. For other cereals, in order to allow farmers to adapt, the changes should only apply from the 2010/2011 marketing year.
(7)
The medium-term outlook for the dairy sector is characterised by a continued increase in Community demand for high value added products; a substantial expansion in global demand for dairy commodities, driven by income and population growth in many regions of the world; and by changes in consumer preferences towards dairy products.
(8)
Constrained by the milk quota ceilings, total Community milk production is projected to follow a gradual, though modest decline over the medium term as continued restructuring in the Member States, which were not members of the Community before 1 May 2004, will lead to a decline in subsistence milk production, while production growth remains limited due to the existence of quotas. At the same time, the quantity of milk delivered to dairies for processing is expected to continue to increase over the projected period. In the light of strong internal and external demand, the milk quota system is hence restricting production expansion, as opposed to the situation when quotas were introduced as a response to overproduction. In such a market situation, quotas reduce market orientation because they distort farmers' response to price signals, and prevent efficiency gains in the sector by slowing down restructuring. The quotas are scheduled to end in 2015. Appropriate adjustments should be made by degrees so to allow for a smooth transition by avoiding an excessive adjustment after quotas have ended. The phasing-out of dairy quotas by annual increases of 1 % should therefore be provided per marketing year from 2009/2010 to 2013/2014. Other changes to make the milk quota system more flexible as regards the fat adjustment, by abolishing the adjustment set out in Article 80(2) of Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (the Single CMO Regulation) (5), and as regards the quota inactivity rules, by increasing the percentage in Article 72(2) of that Regulation which a producer should use during a twelve-month period and thus making it easier for unused quota to be reallocated, should also be made for the same reasons. In the context of the restructuring of the sector, Member States should be permitted until 31 March 2014 to grant an additional national aid within certain limits. The quota increases decided by Council Regulation (EC) No 248/2008 of 17 March 2008 amending Regulation (EC) No 1234/2007 as regards the national quotas for milk (6) and the 1 % annual increase, along with the other changes which reduce the likelihood of the surplus levy being incurred mean that only Italy would be at risk of the levy being incurred on the basis of current production patterns if annual increases of 1 % were applied from the 2009/2010 period until 2013/2014. Therefore, taking into account the current production patterns in all Member States, the increase in quota should be front-loaded for Italy in order to avoid this risk. In order to ensure that in all Member States the quota increases lead to a controlled and smooth transition, the surplus levy system should be strengthened for the next two years and be set at an appropriately dissuasive level. An additional levy should therefore be imposed in cases where increases in deliveries would significantly exceed the 2008/2009 quota levels.
(9)
The cheese market is steadily expanding with increased demand from inside as well as from outside the Community. In general, therefore, prices for cheese have for some time remained constant and have not been significantly influenced by the reduction of the institutional prices for bulk products (butter and skimmed-milk powder). From both an economic and market management point of view, permanent and optional aid for the private storage of a high value, market-driven product like cheese is no longer justified and should therefore be abolished.
(10)
In the context of the dairy reform and the current market situation, the aid for skimmed-milk powder used as animal feed and skimmed milk for casein production is not currently needed. However, should surpluses of milk products build up or be likely to occur, thus creating or likely to create a serious imbalance in the market, such aid could still play a role. The decision should, however, be taken by the Commission based on sound market analysis rather than an obligation to open the scheme every year. The scheme should, therefore, become optional. If applied, the aid should be determined in advance or by tender.
(11)
Disposal aid for butter intended for pastry and ice cream and for direct consumption has been reduced in line with the reduction of the intervention price for butter as from 2004 and was consequently at zero before tenders were suspended due to the favourable market situation. Disposal aid schemes are no longer needed to support the market at intervention price level and should therefore be abolished.
(12)
As was the case with the CAP reform of 2003, with a view to enhancing the competitiveness of Community agriculture and promoting more market-oriented and sustainable agriculture, it is necessary to continue the shift from production support to producer support by abolishing the existing aids in the Single CMO Regulation for dried fodder, flax, hemp and potato starch and integrating support for these products into the system of decoupled income support for each farm. As was the case with the 2003 CAP reform, while decoupling aid paid to farmers will leave the actual amounts paid unchanged, it will significantly increase the effectiveness of the income support.
(13)
The aid for flax and hemp fibre should now be decoupled. However, in order to allow the flax and hemp industry to adapt, integration of this support into the Single Payment Scheme should be carried out during a transitional period. Aid should therefore be provided for long flax fibre, short flax fibre and hemp fibre until 1 July 2012. Maintaining the aid for short flax fibre and hemp fibre, in order to balance the aid in the sector, means that the aid for long flax fibre should be reduced. However, in order to respect the legitimate expectations of growers, this reduction should only take place from the 2010/2011 marketing year.
(14)
The dried fodder regime was reformed in 2003, when part of the aid was given to the industry and the rest was decoupled and integrated into the Single Payment Scheme. In the context of the overall move towards more market orientation, the present outlook in the markets for feed and protein crops and the particular negative environmental impact that the production of dehydrated fodder has recently been found to generate, the transition to full decoupling for the entire sector should be completed by decoupling the remaining aid to the industry. In order to mitigate the effects of ending the payment of aid to the industry, the appropriate adjustments in the price paid to the producers of the raw materials, who will themselves be receiving increased direct aid entitlements as a result of decoupling, should be made. The sector has been restructuring since the 2003 reform, a transitional period until 1 April 2012 should nonetheless be provided for to allow the sector to adjust.
(15)
The system set out in Council Regulation (EC) No 1868/94 of 27 July 1994 establishing a quota system in relation to the production of potato starch (7) will no longer be required once the related aid for starch potato growers laid down in Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes under the Common Agricultural Policy and establishing certain support schemes for farmers (8) is abolished. Aid to producers was partially decoupled in 2003 and this aid should now be fully decoupled although a transitional period until 1 July 2012 should be provided to allow farmers to adapt their supply commitments to the potato starch aid scheme. The related minimum price should, therefore, also be extended for the same period. Beyond that date, the quota system related to the direct payment should be removed in parallel with the full integration of that direct payment into the single payment scheme. In the meantime, the provisions concerned should be integrated, as is the case with other aids and quota schemes, into the Single CMO Regulation.
(16)
Developments in domestic and international cereal and starch markets render the starch production refund no longer relevant with respect to its initial objectives, and it should therefore be abolished. The market situation and perspectives are such that the aid has been set at zero for some time and this is expected to continue, which means that abolition may take place rapidly without any negative effects for the sector.
(17)
Producer organisations can serve a useful role in grouping supply in sectors where there is an imbalance in the concentration of producers and purchasers. Member States should therefore be able to recognise producer organisations on a Community level in all sectors.
(18)
Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (9) provides for Member States to retain part of the component of national ceilings corresponding to the hops area payments and use them, in particular, to finance certain activities of recognised producer organisations. That Regulation is being repealed and in Regulation (EC) No 73/2009 the hops area payment is being decoupled from 1 January 2010, which means that under the provision the last payment to producer organisations will be made in 2010. In order to allow the hop producer organisations to continue their activities as before, a specific provision should be made for equivalent amounts to be used in the Member State concerned for the same activities with effect from 1 January 2011.
(19)
The Single CMO Regulation provides for amounts withheld from the aid for olive groves under Article 110i(4) of Regulation (EC) No 1782/2003 to be used to finance work programmes of operator organisations. Regulation (EC) No 1782/2003 is being repealed. In the interests of clarity and legal certainty, specific provision should be made to set out the amounts to be used in the Member States concerned for the work programmes.
(20)
In the interests of legal certainty, and simplicity it is appropriate to clarify and harmonise the provisions on the non-application of Articles 87, 88 and 89 of the Treaty to payments made by Member States in conformity with Regulation (EC) No 1234/2007 or Council Regulation (EC) No 247/2006 of 30 January 2006 laying down specific measures for agriculture in the outermost regions of the Union (10), Council Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community (11), Council Regulation (EC) No 1405/2006 of 18 September 2006 laying down specific measures for agriculture in favour of the smaller Aegean islands (12), Council Regulation (EC) No 3/2008 of 17 December 2007 on information provision and promotion measures for agricultural products on the internal market and in third countries (13) and Council Regulation (EC) No 479/2008 of 29 April 2008 on the common organisation of the market in wine (14). In this context, the provisions of those Regulations which otherwise would or might, under certain circumstances, fall within the notion of State aid within the meaning of Article 87(1) of the Treaty should be excluded from the application of State aid rules. The provisions concerned contain appropriate conditions for the granting of support to prevent the undue distortion of competition.
(21)
Regulations (EC) No 247/2006, (EC) No 320/2006, (EC) No 1405/2006, (EC) No 1234/2007, (EC) No 3/2008 and (EC) No 479/2008 should therefore be amended accordingly.
(22)
The following acts are obsolete and should therefore, in the interests of legal certainty, be repealed: Council Regulation (EEC) No 1883/78 of 2 August 1978 laying down general rules for the financing of interventions by the European Agricultural Guidance and Guarantee Fund, Guarantee Section (15), Council Regulation (EEC) No 1254/89 of 3 May 1989 fixing, for the 1989/90 marketing year, inter alia, certain sugar prices and the standard quality of beet (16), Council Regulation (EEC) No 2247/89 of 24 July 1989 on an emergency measure for the free supply of certain agricultural products to Poland (17), Council Regulation (EEC) No 2055/93 of 19 July 1993 allocating a special reference quantity to certain producers of milk and milk products (18) and Council Regulation (EC) No 1182/2005 of 18 July 2005 adopting autonomous and transitional measures to open a Community tariff quota for the import of live bovine animals originating in Switzerland (19). The following acts will become obsolete with effect from 1 May 2009 and, for the same reasons, should therefore be repealed with effect from that date: Council Regulation (EC) No 2596/97 of 18 December 1997 extending the period provided for in Article 149(1) of the Act of Accession of Austria, Finland and Sweden (20) and Council Regulation (EC) No 315/2007 of 19 March 2007 laying down transitional measures derogating from Regulation (EC) No 2597/97 as regards drinking milk produced in Estonia (21).
(23)
This Regulation should, as a general rule, apply from the date of its entry into force. However, in order to ensure that the provisions of this Regulation do not interfere with certain aids payable for the 2008/2009 or 2009/2010 marketing years, a later date of application should be provided for in respect of those provisions directly affecting the operation of schemes in sectors for which marketing years are envisaged. This Regulation should in such cases only apply as from the start of the later marketing years,
HAS ADOPTED THIS REGULATION:
Article 1
Amendments to Regulation (EC) No 247/2006
Article 16 of Regulation (EC) No 247/2006 is amended as follows:
1)
The second subparagraph of paragraph 3 shall be deleted.
2)
The following paragraph shall be added:
‘4. Without prejudice to paragraphs 1 and 2 of this Article and by way of derogation from Article 180 of Regulation (EC) No 1234/2007 (22) and Article 3 of Regulation (EC) No 1184/2006 (23), Articles 87, 88 and 89 of the Treaty shall not apply to payments made under Title III, paragraph 3 of this Article and Articles 17 and 21 of this Regulation by Member States in conformity with this Regulation.
Article 2
Amendments to Regulation (EC) No 320/2006
Regulation (EC) No 320/2006 is amended as follows:
1)
Article 6(6) shall be replaced by the following:
‘6. Member States shall not grant national aid in respect of diversification measures provided for in this Article. However, if the ceilings referred to in the third subparagraph of paragraph 4 permit the granting of an aid for diversification of 100 %, the Member State concerned shall contribute at least 20 % of the eligible expenditure.’.
2)
The following Article shall be inserted:
‘Article 13a
State aids
Without prejudice to Article 6(5) of this Regulation and by way of derogation from Article 180 of Regulation (EC) No 1234/2007 (22) and Article 3 of Regulation (EC) No 1184/2006 (23), Articles 87, 88 and 89 of the Treaty shall not apply to payments made under Articles 3, 6, 7, 8, 9 and 11 of this Regulation by Member States in conformity with this Regulation.
Article 3
Amendment to Regulation (EC) No 1405/2006
The following paragraph shall be added to Article 11 of Regulation (EC) No 1405/2006:
‘3. Without prejudice to paragraphs 1 and 2 of this Article and by way of derogation from Article 180 of Regulation (EC) No 1234/2007 (22) and Article 3 of Regulation (EC) No 1184/2006 (23), Articles 87, 88 and 89 of the Treaty shall not apply to payments made under Articles 4 and 7 of this Regulation by Member States in conformity with this Regulation.
Article 4
Amendments to Regulation (EC) No 1234/2007
Regulation (EC) No 1234/2007 is amended as follows:
1)
Point (a) of Article 8(1) shall be replaced by the following:
‘(a)
as regards the cereals sector, EUR 101,31 per tonne’;
2)
Paragraph 2 of Article 10 shall be deleted;
3)
Subsection II of Section II of Chapter I of Title I of Part II shall be replaced by the following:
‘Subsection II
Opening of buying-in
Article 11
Public intervention periods
Public intervention shall be available:
(a)
for cereals, from 1 November to 31 May;
(b)
for paddy rice, from 1 April to 31 July;
(c)
for sugar, throughout the marketing years 2008/2009 and 2009/2010;
(d)
for beef and veal, throughout any marketing year;
(e)
for butter and skimmed milk powder, from 1 March to 31 August.
Article 12
Opening of public intervention
1. During the periods referred to in Article 11, public intervention:
(a)
shall be open for common wheat;
(b)
shall be open for durum wheat, barley, maize, sorghum, paddy rice, sugar, butter and skimmed milk powder up to the intervention limits referred to in Article 13(1);
(c)
shall be opened for beef and veal by the Commission, without the assistance of the Committee referred to in Article 195(1), if the average market price for beef and veal over a representative period in a Member State or in a region of a Member State recorded on the basis of the Community scale for the classification of carcasses provided for in Article 42(1) is below EUR 1 560/tonne.
2. Public intervention for beef and veal, referred to in point (c) of paragraph 1, shall be closed by the Commission, without the assistance of the Committee referred to in Article 195(1), where, over a representative period, the conditions provided for in that point are no longer fulfilled.
Article 13
Intervention limits
1. Buying into public intervention shall be carried out within the following limits:
(a)
for durum wheat, barley, maize, sorghum and paddy rice, 0 tonnes for the periods referred to in Article 11(a) and (b) respectively;
(b)
for sugar, 600 000 tonnes, expressed in white sugar, for each marketing year;
(c)
for butter, 30 000 tonnes for each period referred to in Article 11(e);
(d)
for skimmed milk powder 109 000 tonnes for each period referred to Article 11(e).
2. Sugar stored in accordance with point (b) of paragraph 1 of this Article during a marketing year shall not be subject to any of the other storage measures provided for in Articles 32, 52 and 63.
3. By way of derogation from paragraph 1, for the products referred to in points (a), (c) and (d) of that paragraph, the Commission may decide to continue public intervention beyond the amounts referred to in that paragraph if the market situation and, in particular, the development of market prices, so requires.’.
4)
Subsection III of Section II of Chapter I of Title I of Part II shall be replaced by the following:
‘Subsection III
Intervention prices
Article 18
Intervention prices
1. The intervention price:
(a)
for common wheat shall be equal to the reference price for a maximum quantity offered of 3 million tonnes per intervention period as fixed in Article 11(a);
(b)
for butter shall be equal to 90 % of the reference price for amounts offered within the limit in Article 13(1)(c);
(c)
for skimmed milk powder shall be equal to the reference price for amounts offered within the limit in Article 13(1)(d).
2. The intervention prices and the quantities for intervention for the following products shall be determined by the Commission by means of tendering procedures:
(a)
common wheat for amounts in excess of the maximum quantity offered of 3 million tonnes per intervention period as fixed in Article 11(a);
(b)
durum wheat, barley, maize, sorghum and paddy rice, in application of Article 13(3);
(c)
beef and veal;
(d)
butter for amounts offered in excess of the limit in Article 13(1)(c), in application of Article 13(3), and
(e)
skimmed milk powder for amounts offered in excess of the limit in Article 13(1)(d), in application of Article 13(3).
In special circumstances, tendering procedures may be restricted to, or the intervention prices and the quantities for intervention may be fixed per, Member State or region of a Member State on the basis of recorded average market prices.
3. The maximum buying-in price determined in accordance with tendering procedures under paragraph 2 shall not be higher:
(a)
for cereals and paddy rice, than the respective reference prices;
(b)
for beef and veal, than the average market price recorded in a Member State or a region of a Member State increased by an amount to be determined by the Commission on the basis of objective criteria;
(c)
for butter, than 90 % of the reference price;
(d)
for skimmed milk powder, than the reference price.
4. The intervention prices referred to in paragraphs 1, 2 and 3 shall be:
(a)
for cereals, without prejudice to price increases or reductions for quality reasons, and
(b)
for paddy rice, increased or decreased accordingly if the quality of the products offered to the paying agency differs from the standard quality, defined in point A of Annex IV. Moreover, increases and reductions of the intervention price may be fixed by the Commission in order to ensure that production is orientated towards certain varieties.
5. The intervention price for sugar shall be 80 % of the reference price fixed for the marketing year following the marketing year during which the offer is lodged. However, if the quality of the sugar offered to the paying agency differs from the standard quality defined in point B of Annex IV for which the reference price is fixed, the intervention price shall be increased or reduced accordingly.’.
5)
Point (b) of Article 28 shall be deleted.
6)
Article 30 shall be deleted.
7)
Article 31 shall be amended as follows:
(a)
point (e) of paragraph 1 shall be deleted;
(b)
in paragraph 2, the second subparagraph shall be deleted.
8)
Article 36 shall be deleted.
9)
Article 43 shall be amended as follows:
(a)
point (a) shall be replaced by the following:
‘(a)
the requirements and conditions to be met by products to be bought into public intervention as referred to in Article 10 or for which aid for private storage is granted as referred to in Articles 28 and 31, in particular with respect to quality, quality groups, quality grades, categories, quantities, packaging including labelling, maximum ages, preservation, the stage of the products to which the intervention price relates, and the duration of private storage;’;
(b)
the following point shall be added after point (a):
‘(aa)
the respect of the maximum quantities and quantitative limits set out in Article 13(1) and point (a) of Article 18(1); in this context, the implementing rules may authorise the Commission to close buying-in at a fixed price, adopt allocation coefficients and, for common wheat, switch to the tendering procedure referred to in Article 18(2), without the assistance of the Committee referred to in Article 195(1);’.
10)
Article 46(3) shall be deleted.
11)
Article 55 shall be replaced by the following:
‘Article 55
Quota systems
1. A quota system shall apply to the following products:
(a)
milk and other milk products within the meaning of points (a) and (b) of Article 65;
(b)
sugar, isoglucose and inulin syrup;
(c)
potato starch which may benefit from Community aid.
2. As regards the quota systems referred to in points (a) and (b) of paragraph 1 of this Article, if a producer exceeds the relevant quota and, with regard to sugar, does not make use of the surplus quantities as provided for in Article 61, a surplus levy shall be payable on such quantities, subject to the conditions set out in Sections II and III.’.
12)
In Article 72(2), ‘70 %’ shall be replaced by ‘85 %’.
13)
The following subparagraph shall be added to Article 78(1):
‘However, for the twelve-month periods starting on 1 April 2009 and 1 April 2010, the surplus levy for milk delivered in excess of 106 % of the national quota for deliveries applicable for the twelve-month period starting on 1 April 2008 shall be set at 150 % of the levy referred to in the second subparagraph.’.
14)
Article 80 shall be amended as follows:
(a)
the following subparagraph shall be added to paragraph 1:
‘At national level, the surplus levy shall be calculated on the basis of the sum of the deliveries, adjusted in accordance with the first subparagraph.’;
(b)
paragraph 2 shall be deleted;
(c)
the following subparagraph shall be added to paragraph 3:
‘Where the third subparagraph of Article 78(1) applies, Member States, in establishing each producer's contribution to the amount of levy payable due to the application of the higher rate referred to in that subparagraph, shall ensure that this amount is contributed proportionately by the producers responsible according to objective criteria to be set by the Member State.’.
15)
The following Section shall be inserted in Chapter III of Title I of Part II:
‘Section IIIa
Potato starch quotas
Article 84a
Potato starch quotas
1. The potato starch producing Member States shall be allocated quotas for the marketing year during which the quota scheme applies in accordance with Article 204(5) and Annex Xa.
2. Each producer Member State referred to in Annex Xa shall allocate its quota among potato starch manufacturers for use in the marketing years concerned on the basis of the subquotas allocated to each manufacturer in 2007/2008.
3. An undertaking producing potato starch shall not conclude cultivation contracts with potato producers for a quantity of potatoes which would produce a quantity of starch in excess of its quota as referred to in paragraph 2.
4. Any potato starch produced in excess of the quota as referred to in paragraph 2 shall be exported, as such, from the Community before 1 January following the end of the marketing year in question. No export refund shall be paid in respect of it.
5. Notwithstanding paragraph 4, an undertaking producing potato starch may, in any marketing year, in addition to its quota for that year, utilise no more than 5 % of its quota relating to the following marketing year. In such case, the quota for the following marketing year shall be reduced accordingly.
6. The provisions of this Section shall not apply to the production of potato starch by undertakings which are not subject to paragraph 2 of this Article and which purchase potatoes for which producers do not benefit from the payment provided for in Article 77 of Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes under the Common Agricultural Policy and establishing certain support schemes for farmers (24).
16)
In Article 85, the following point shall be added:
‘(d)
in respect of Section IIIa, mergers, changes of ownership and the commencement or cessation of trading of potato starch manufacturers.’.
17)
Subsection I of Section I of Chapter IV of Title I of Part II shall be deleted.
18)
In Article 91(1), the first two subparagraphs shall be replaced by the following subparagraph:
‘Aid for processing the straw of long flax grown for fibre and the straw of short flax and hemp grown for fibre shall be granted for the 2009/2010 to 2011/2012 marketing years to authorised primary processors on the basis of the quantity of fibre actually obtained from straw for which a contract of sale has been concluded with a farmer.’.
19)
The first subparagraph of Article 92(1) shall be amended as follows:
(a)
the second indent of point (a) shall be replaced by the following two indents:
‘-
at EUR 200 per tonne for the 2009/2010 marketing year; and
-
at EUR 160 per tonne for the 2010/2011 and 2011/2012 marketing years.’.
(b)
point (b) shall be replaced by the following:
‘(b)
at EUR 90 per tonne for the 2009/2010, 2010/2011 and 2011/2012 marketing years for short flax and hemp fibre containing not more than 7,5 % impurities and shives;’.
20)
Article 94(1) shall be replaced by the following:
‘1. A maximum guaranteed quantity of 80 878 tonnes for each of the 2009/2010 to 2011/2012 marketing years shall be established for long flax fibre in respect of which aid may be granted. That quantity shall be apportioned among certain Member States as national guaranteed quantities in accordance with point A.I. of Annex XI.’.
21)
Article 94(1a) shall be replaced by the following:
‘1a. A maximum guaranteed quantity of 147 265 tonnes for each of the 2009/2010 to 2011/2012 marketing years shall be established for short flax fibre and hemp fibre in respect of which aid may be granted. That quantity shall be apportioned as national guaranteed quantities among certain Member States in accordance with point A.II. of Annex XI.’.
22)
The following subsection shall be inserted into Section I of Chapter IV of Title I of Part II:
‘Subsection III
Potato starch
Article 95a
Potato starch premium
1. A premium of EUR 22,25 per tonne of starch produced shall be paid for the 2009/2010, 2010/2011 and 2011/2012 marketing years to potato starch manufacturers for the quantity of potato starch up to the quota limit referred to in Article 84a(2), provided that they have paid to potato producers a minimum price for all the potatoes necessary to produce starch up to that quota limit.
2. The minimum price of potatoes intended for the manufacture of potato starch shall be set at EUR 178,31 per tonne for the marketing years concerned.
This price applies to the quantity of potatoes, delivered to the factory, which is needed to make one tonne of starch.
The minimum price shall be adjusted according to the starch content of the potatoes.
3. The Commission shall adopt the detailed rules for the implementation of this Subsection.’.
23)
Article 96 shall be deleted.
24)
Articles 99 and 100 shall be replaced by the following:
‘Article 99
Aid for skimmed milk and skimmed milk powder for use as feedingstuffs
1. When surpluses of milk products build up or are likely to occur, creating or likely to create a serious imbalance in the market, the Commission may decide that aid shall be granted for Community-produced skimmed milk and skimmed-milk powder intended for use as feedingstuffs, according to conditions and product standards to be determined by the Commission. The aid may be fixed in advance or by means of tendering procedures.
For the purposes of this Article, buttermilk and buttermilk powder shall be regarded as skimmed milk and skimmed-milk powder.
2. Aid amounts shall be fixed by the Commission taking into account the reference price fixed in point (e)(ii) of Article 8(1) for skimmed-milk powder, and the development of the market situation as regards skimmed milk and skimmed-milk powder.
Article 100
Aid for skimmed milk processed into casein and caseinates
1. When surpluses of milk products build up or are likely to occur, creating or likely to create a serious imbalance in the market, the Commission may decide that aid shall be granted for Community-produced skimmed milk processed into casein and caseinates, according to conditions and product standards of such milk and the casein or caseinates produced from it to be determined by the Commission. The aid may be fixed in advance or by means of tendering procedures.
2. Aid shall be fixed by the Commission taking into account the development of the market situation for skimmed-milk powder and the reference price for skimmed-milk powder, fixed in point (e)(ii) of Article 8(1).
The aid may vary, according to whether the skimmed milk is processed into casein or caseinates and according to the quality of those products.’.
25)
Article 101 shall be deleted.
26)
Article 102(2) shall be replaced by the following:
‘2. Member States may, in addition to Community aid, grant national aid for supplying the products referred to in paragraph 1 to pupils in educational establishments. Member States may finance their national aid by means of a levy on the dairy sector or by any other contribution from the dairy sector.’.
27)
The following section shall be inserted:
‘Section IIIa
Aids in the hops sector
Article 102a
Aids to producer organisations
1. The Community shall finance a payment to producer organisations in the hops sector recognised under Article 122 to finance the aims referred to in that Article.
2. The Community financing per year for the payment to producer organisations shall be EUR 2 277 000 for Germany.
3. The Commission shall adopt the detailed rules for the implementation of this Section.’.
28)
Article 103 shall be amended as follows:
(a)
the introductory part of paragraph 1 shall be replaced by the following:
‘1. The Community shall finance three-year work programmes to be drawn up by the operator organisations referred to in Article 125 in one or more of the following areas:’;
(b)
the following paragraph shall be inserted:
‘1a. The Community financing per year of the work programmes shall be:
(a)
EUR 11 098 000 for Greece,
(b)
EUR 576 000 for France, and
(c)
EUR 35 991 000 for Italy.’.
29)
Article 103e(2) shall be deleted.
30)
Article 105(2) shall be replaced by the following:
‘2. Member States may pay specific national aids for the protection of apiaries disadvantaged by structural or natural conditions or under economic development programmes, except for those allocated for production or trade. These aids shall be notified to the Commission by Member States together with the communication of the apiculture programme in accordance with Article 109.’.
31)
Article 119 shall be replaced by the following:
‘Article 119
Use of casein and caseinate in the manufacture of cheese
Where aid is paid under Article 100, the Commission may make the use of casein and caseinates in the manufacture of cheese subject to prior authorisation which shall be granted only if such use is a necessary condition for the manufacture of the products.’.
32)
The following paragraph shall be added to Article 122:
‘Member States may also recognise producer organisations constituted by producers in any sector referred to in Article 1, other than those sectors referred to in point (a) of the first paragraph, on the conditions set out in points (b) and (c) of that paragraph.’.
33)
Article 124(1) shall be replaced by the following:
‘1. Article 122 and Article 123(1) shall apply without prejudice to the recognition, decided by Member States on the basis of national law and in compliance with Community law, of producer organisations or interbranch organisations respectively, in any sector referred to in Article 1 except for the sectors referred to in point (a) of the first paragraph of Article 122 and in Article 123(1).’.
34)
Article 180 shall be replaced by the following:
‘Article 180
Application of Articles 87, 88 and 89 of the Treaty
Articles 87, 88 and 89 of the Treaty shall apply to the production of, and trade in, the products referred to in points (a) to (k) and points (m) to (u) of Article 1(1) and in Article 1(3) of this Regulation.
However, Articles 87, 88 and 89 of the Treaty shall not apply to payments made under Articles 44, 45, 46, 47, 48, 102, 102a, 103, 103a, 103b, 103e, 103ga, 104, 105 and 182 of this Regulation by Member States in conformity with this Regulation.’.
35)
The following paragraph shall be added to Article 182:
‘7. Member States may grant until 31 March 2014 state aid of a total annual amount of up to 55 % of the ceiling set out in Article 69(4) and (5) of Regulation (EC) No 73/2009 to farmers in the dairy sector in addition to Community support granted in accordance with Article 68(1)(b) of that Regulation. However, in no case shall the total amount of Community support under the measures referred to in Article 68(4) of that Regulation and state aid exceed the ceiling referred to in the Article 68(4).’.
36)
The following point shall be added to Article 184:
‘6)
before 31 December 2010 and 31 December 2012 to the European Parliament and Council regarding the evolution of the market situation and the consequent conditions for smoothly phasing out the milk quota system, accompanied if necessary by appropriate proposals. Furthermore, a report will study the consequences for producers of cheeses with a protected designation of origin in accordance with Regulation (EC) No 510/2006.’.
37)
The following paragraph shall be added to Article 204:
‘5. As regards potato starch, Section IIIa of Chapter III of Title I of Part II shall apply until the end of the 2011/2012 marketing year for potato starch.’.
38)
Point 1 of Annex IX shall be replaced by the text in Annex I to this Regulation.
39)
The text of Annex II to this Regulation shall be inserted as Annex Xa.
40)
The text of Annex III to this Regulation shall be inserted in Annex XXII as point 20a.
Article 5
Amendment to Regulation (EC) No 3/2008
Article 13(6) of Regulation (EC) No 3/2008 shall be replaced by the following:
‘6. By way of derogation from Article 180 of Regulation (EC) No 1234/2007 (22) and Article 3 of Regulation (EC) No 1184/2006 (23), Articles 87, 88 and 89 of the Treaty shall not apply to payments made by Member States, including their financial participations, nor to the financial participations from parafiscal charges or mandatory contributions of Member States or proposing organisations for programmes eligible for Community support under Article 36 of the Treaty, that the Commission has selected in accordance with Article 8(1) of this Regulation.
Article 6
Amendment to Regulation (EC) No 479/2008
Article 127(2) of Regulation (EC) No 479/2008 shall be replaced by the following:
‘2. Without prejudice to the maximum aid rates referred to in the second subparagraph of Article 8(4) of this Regulation, Articles 87, 88 and 89 of the Treaty shall not apply to payments made under Title II, Chapter III of Title V, and Article 119 of this Regulation by Member States in conformity with this Regulation.’.
Article 7
Repeals
1. Regulations (EEC) No 1883/78, (EEC) No 1254/89, (EEC) No 2247/89, (EEC) No 2055/93 and (EC) No 1182/2005 shall be repealed.
2. Regulations (EC) No 2596/97 and (EC) No 315/2007 shall be repealed with effect from 1 May 2009.
3. Regulation (EC) No 1868/94 shall be repealed with effect from 1 July 2009.
References to the repealed Regulation shall be construed as references to Regulation (EC) No 1234/2007 and shall be read in accordance with the respective correlation table in Annex XXII to that Regulation.
Article 8
Entry into force
This Regulation shall enter into force on the third day following that of its publication in the Official Journal of the European Union.
However:
(a)
Points 5 to 8, 12 to 14 and 38 of Article 4 shall apply from 1 April 2009;
(b)
Points 11, 15, 16, 18 to 25, 31, 37 and 39 of Article 4 shall apply from 1 July 2009;
(c)
Points 1, 3, 4, and 9(b) of Article 4 shall apply from:
(i)
1 July 2009, as regards durum wheat,
(ii)
1 September 2009, as regards the rice sector,
(iii)
1 October 2009, as regards the sugar sector,
(iv)
1 July 2010, as regards common wheat, barley, maize and sorghum,
(d)
Point 27 of Article 4 shall apply from 1 January 2011;
(e)
Point 17 of Article 4 shall apply from 1 April 2012.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 19 January 2009. | [
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COUNCIL REGULATION (EC) No 1504/2004
of 19 July 2004
amending and updating Regulation (EC) No 1334/2000 setting up a Community regime for the control of exports of dual-use items and technology
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 133 thereof,
Having regard to the proposal from the Commission,
Whereas:
(1)
Council Regulation (EC) No 1334/2000 (1) requires dual-use items (including software and technology) to be subject to effective control when they are exported from the Community.
(2)
In order to enable the Member States and the Community to comply with their international commitments, Annex I to Regulation (EC) No 1334/2000 establishes the common list of dual-use items and technology referred to in Article 3 of that Regulation, which implements internationally agreed dual-use controls, including the Wassenaar Arrangement, the Missile Technology Control Regime (MTCR), the Nuclear Suppliers Group (NSG), the Australia Group and the Chemical Weapons Convention (CWC).
(3)
Article 11 of Regulation (EC) No 1334/2000 provides for Annex I and Annex IV to be updated in conformity with the relevant obligations and commitments, and any modifications thereof that each Member State has accepted as a member of the international non-proliferation regimes and export control arrangements, or by ratification of relevant international treaties.
(4)
Annex I to Regulation (EC) No 1334/2000 should be amended in order to take account of changes adopted by the Wassenaar Arrangement, the Australia Group and the Missile Technology Control Regime subsequent to the amendments made by Regulation No 149/2003 (2) on 27 January 2003.
(5)
Council Regulation (EC) No 885/2004 amended Part 3 of Annex II to Regulation (EC) No 1334/2000 in order to delete the Czech Republic, Hungary and Poland from the current list of countries for which the Community Export Authorisation applies.
(6)
For ease of reference for export control authorities and operators, it is necessary to publish an updated and consolidated version of the Annexes to Regulation (EC) No 1334/2000, taking into account all the amendments accepted by the Member States in international forums during the period covering December 2002 to December 2003.
(7)
Regulation (EC) No 1334/2000 should be amended accordingly,
HAS ADOPTED THIS REGULATION:
Article 1
The Annexes to Regulation (EC) No 1334/2000 shall be replaced by the text in the Annex to this Regulation.
Article 2
This Regulation shall enter into force on the 30th day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 19 July 2004. | [
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COMMISSION REGULATION (EC) No 1468/1999
of 5 July 1999
laying down certain detailed rules for the application measures for the Community beef and veal labelling system in 1999/2000
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2071/98 of 28 September 1998 on publicity measures on the labelling of beef and veal(1),
Having regard to Commission Regulation (EC) No 890/1999 of 29 April 1999 on the organisation of publicity measures relating to the Community system for the labelling of beef and veal(2), and in particular Article 1(2) thereof,
(1) Whereas Regulation (EC) No 2071/98 makes provision for the Community to finance publicity measures intended to inform consumers of the guarantees offered by the system for the labelling of beef and veal;
(2) Whereas Article 1(2) of Regulation (EC) No 890/1999 provides that the Commission is to draw up a list of Member States participating in the implementation of publicity measures and apportion among those Member States the funds for financing the measures; whereas, under that procedure, the funds are to be distributed taking account of beef and veal consumption and production in each Member State;
(3) Whereas application of those criteria produces the distribution laid down in this Regulation;
(4) Whereas the measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Beef and Veal,
HAS ADOPTED THIS REGULATION:
Article 1
The Member States intending to implement publicity measures in 1999/2000 to inform consumers of the guarantees offered by the Community system for the labelling of beef and veal introduced by Council Regulation (EC) No 820/97(3) are as set out in column I of the Annex.
Article 2
The funds for financing and evaluating the publicity measures shall be distributed among th Member States referred to in Article 1 as set out in columns II and III of the Annex.
Article 3
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 5 July 1999. | [
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COMMISSION DECISION of 8 October 1997 concerning a request for exemption submitted by Luxembourg pursuant to Article 8 (2) (c) of Council Directive 70/156/EEC on the approximation of the laws of the Member States relating to the type-approval of motor vehicles and their trailers (Only the French text is authentic) (97/673/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 70/156/EEC of 6 February 1970 on the approximation of the laws of the Member States relating to the type-approval of motor vehicles and their trailers (1), as last amended by European Parliament and Council Directive 96/79/EC (2), and in particular Article 8 (2) (c) thereof,
Whereas the request submitted by Luxembourg on 17 February 1997, which reached the Commission on 24 February 1997, contains the information required by Article 8 (2) (c); whereas the request concerns the fitting of two types of vehicle with two types of third stop lamp falling within category ECE S3 by virtue of ECE (United Nations Economic Commission for Europe) Regulation No 7 carried out in accordance with ECE Regulation No 48;
Whereas the reasons given in the request, according to which the fitting of the stop lamps and the stop lamps themselves do not meet the requirements of Council Directive 76/758/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to end-outline marker lamps, front position (side) lamps, rear position (side) lamps and stop lamps for motor vehicles and their trailers (3), as last amended by Commission Directive 97/30/EC (4), and of Council Directive 76/756/EEC of 27 July 1976 on the approximation of the laws of the Member States relating to the installation of lighting and light-signalling devices on motor vehicles and their trailers (5), as last amended by Commission Directive 97/28/EC (6), are well founded; whereas the descriptions of the tests, the results thereof and their compliance with ECE Regulations No 7 and No 48 ensure a satisfactory level of safety;
Whereas the Community directives concerned will be amended in order to permit the production and fitting of such stop lamps;
Whereas the measure provided for by this Decision is in accordance with the opinion of the Committee on Adaptation to Technical Progress set up by Directive 70/156/EEC,
HAS ADOPTED THIS DECISION:
Article 1
The request submitted by Luxembourg for an exemption concerning the production of two types of third stop lamp falling within category ECE S3 by virtue of ECE Regulation No 7 and the fitting thereof in accordance with ECE Regulation No 48 on the types of vehicle for which they are intended is hereby approved.
Article 2
This Decision is addressed to the Grand Duchy of Luxembourg.
Done at Brussels, 8 October 1997. | [
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COUNCIL REGULATION (EC) No 1295/98 of 22 June 1998 concerning the freezing of funds held abroad by the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 73g and 228a,
Having regard to Common Position 98/326/CFSP of 7 May 1998 defined by the Council on the basis of Article J.2 of the Treaty on European Union concerning the freezing of funds held abroad by the Federal Republic of Yugoslavia (FRY) and Serbian Governments (1),
Having regard to the proposal from the Commission,
Whereas the said common position provides for a freezing of funds held abroad by the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia;
Whereas this measure falls within the scope of the Treaty establishing the European Community;
Whereas, therefore, and notably with a view to avoiding distortion of competition, Community legislation is necessary for the implementation of this measure, as far as the territory of the Community is concerned; whereas such territory is deemed to encompass, for the purposes of this Regulation, the territories of the Member States to which the Treaty establishing the European Community is applicable, under the conditions laid down in that Treaty;
Whereas circumvention of this Regulation, notably by entities owned by the said governments should be countered with an adequate system of information and, where appropriate, consideration of appropriate remedial measures, including additional Community legislation;
Whereas competent authorities of the Member States should, where necessary, be empowered to ensure compliance with this Regulation;
Whereas there is a need for Commission and Member States to inform each other of the measures taken under this Regulation and of other relevant information at their disposal in connection with this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
For the purpose of this Regulation:
1. 'Government of the Federal Republic of Yugoslavia` means: the Government of the Federal Republic of Yugoslavia, including the public administrations and agencies at the federal level.
2. 'Government of the Republic of Serbia` means: the Government of the Republic of Serbia, including the public administrations and agencies at the central government level in the Republic of Serbia.
3. 'Funds` means: funds of any kind, including interest, dividends or other value accruing to or from any such funds.
4. 'Freezing of funds` means: preventing any change in volume, amount, location, ownership, possession, character, destination or other change that would enable the use of the funds concerned.
Article 2
Except as permitted by Article 3:
1. all funds held outside the territory of the Federal Republic of Yugoslavia and belonging to the Government of the Federal Republic of Yugoslavia and/or to the Government of the Republic of Serbia shall be frozen.
2. No funds shall be made available, directly or indirectly, to or for the benefit of, either or both, those Governments.
Article 3
Article 2 shall not apply to funds exclusively used for the following purposes:
(a) payment for current expenses, including salaries of local staff, embassies, consular posts or diplomatic missions of the Government of the Federal Republic of Yugoslavia and/or the Government of the Republic of Serbia within the Community;
(b) transfer from the Community to natural persons resident in the Federal Republic of Yugoslavia of social security or pension payments as well as the transfer of other payments to protect entitlements in the area of social insurance;
(c) payments for democratisation projects or humanitarian activities carried out by the European Community and or the Member States, including the implementation of the Education Agreement of September 1996, signed by President Milosevic and the leader of the ethnic Albanian community Dr Ibrahim Rugova;
(d) payments of debts incurred with the Federal Republic of Yugoslavia and Serbian Governments before the entry into force of this Regulation, on the condition that these payments are made into accounts held by those Governments with banks or financial institutions within the Community;
(e) payments for essential transit services provided by the Federal Republic of Yugoslavia and Serbian Governments, on the condition that the supply of such services takes place at the usual rates.
Article 4
1. The participation, knowingly and intentionally in related activities, the object or effect of which is, directly or indirectly, to circumvent the provisions of Articles 2 and 4 shall be prohibited.
2. Without prejudice to the Community rules concerning confidentiality, the competent authorities of the Member States shall have the power to require banks, other financial institutions and other bodies and persons to provide all relevant information necessary for ensuring compliance with this Regulation.
3. Any information that the provisions of Article 2 are being, or have been circumvented shall be notified to the competent authorities of the Member States and/or the Commission as listed in Annex.
Article 5
For the purposes of implementing this Regulation, the Commission shall be empowered, on the basis of the information supplied by the Member States, to amend the Annex.
Article 6
Each Member State shall determine the sanctions to be imposed where the provisions of this Regulation are infringed. Such sanctions must be effective, proportionate and dissuasive.
Article 7
The Commission and the Member States shall inform each other of the measures taken under this Regulation and supply each other with the relevant information at their disposal in connection with this Regulation, including information received in accordance with Article 4(3), such as breaches and enforcement problems, judgments handed down by national courts or decisions of relevant international forums.
Article 8
This Regulation shall apply:
- within the territory of the Community including its airspace,
- on board any aircraft or any vessel under the jurisdiction of a Member State,
- to any person elsewhere who is a national of a Member State,
- to any body which is incorporated or constituted under the law of a Member State.
Article 9
This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Luxembourg, 22 June 1998. | [
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COMMISSION DECISION of 1 April 1997 concerning the tonnage objectives of the multiannual guidance programmes for the Community fishing fleets for the period 1992 to 1996 (97/259/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 3699/93 of 21 December 1993 laying down the criteria and arrangements regarding Community structural assistance in the fisheries and aquaculture sector and the processing and marketing of its products (1), as last amended by Regulation (EC) No 25/97 (2), and in particular Article 6 (5) and (6) thereof,
Whereas in the application of the provisions of Article 11 of Council Regulation (EEC) No 3760/92 the Council adopted Decision 94/15/EC (3) relating to the objectives and detailed rules for restructuring the Community fisheries sector over the period 1 January 1994 to 31 December 1996 with a view to achieving a lasting balance between the resources and their exploitation;
Whereas Commission Decisions 92/588/EEC to 92/598/EEC inclusive (4) established multiannual guidance programmes fixing capacity objectives in gross registered tonnes (GRT) for the fishing fleets of the Member States for the period 1992 to 1996 and Council Regulation (EEC) No 2930/86 (5) required Member States to measure part of their fleet in units of gross tonnes (GT) before 18 July 1994;
Whereas the use of the formulae described in Article 1 (3) of Commission Decisions 95/238/EC to 95/248/EC (6) to convert the objectives of the programmes to units of GT could result in certain Member States being penalized for having begun the measurement of vessels in their fleets in units of GT prior to 1992 with a view to fulfilling with their obligations under Regulation (EEC) No 2930/86;
Whereas for some Member States the definition of the GRT referred to in their multiannual guidance programmes was based on national units of tonnage;
Whereas the tonnage of any vessel not measured in the units that were used to define the objectives of the programme must be estimated in this unit with the sole purpose of calculating on a consistent basis the situation of each segment of the fleets of the Member States with respect to the final objectives of their multiannual guidance programmes for the period 1992 to 1996;
Whereas the formulae used to estimate missing tonnage values should be based on the data available in the fishing vessel register of the Community with regard to those vessels in each Member State that have been measured in both GT and in the units that were used to define the objectives of the programme; whereas these formulae may differ between Member States in consequence of differences in the composition of the fleets;
Whereas for Sweden and Finland the objectives of the multiannual guidance programmes are expressed in GT and for Germany, Greece, Spain, France and Portugal, values of GRT have been declared to the fishing vessel register of the Community for all vessels in their fleets, and therefore no formulae to estimate GRT are required for these Member States;
Whereas the data on the fishing fleet are gathered according to the procedures laid down by Commission Regulation (EC) No 109/94 (7) as amended by Commission Regulation (EC) No 493/96 (8);
Whereas the measures provided for in the present Decision are in accordance with the opinion of the Management Committee for Fisheries and Aquaculture,
HAS ADOPTED THIS DECISION:
Article 1
For the purposes of the present Decision 'GRT` is defined according to the Oslo Convention of 10 June 1947 or according to national units of tonnage, depending on the definition used to formulate the objectives of the multiannual guidance programme of the Member State concerned for the period 1992 to 1996.
Article 2
The results of the multiannual guidance programmes of each Member State will be assessed by comparing the tonnage objectives in GRT for 31 December 1996 set by these programmes for each segment of the fleet with the situation in GRT, as defined in Article 1, of the vessels in each segment of the fleet as at 31 December 1996.
Article 3
1. The GRT, as defined in Article 1, of vessels for which this measurement has not at the time of the adoption of the present Decision been declared to the fishing vessel register of the Community according to the procedures of Regulation (EC) No 109/94 will be estimated using the formulae specified in the Annex to the present Decision. These estimates are considered to be definitive for the purpose of assessing the results of the multiannual guidance programmes for the period 1992 to 1996.
2. Using the data in the fishing vessel register of the Community, the estimated GRT values in each segment of the fleet will be calculated by the Commission and transmitted to the Member States concerned within one month of the adoption of this Decision so that the provisions of Article 6 of Regulation (EC) No 3699/93, in particular paragraph 1 thereof, can be applied.
Article 4
This Decision is addressed to the Member States.
Done at Brussels, 1 April 1997. | [
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COMMISSION REGULATION (EC) No 1070/2007
of 18 September 2007
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables (1), and in particular Article 4(1) thereof,
Whereas:
(1)
Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2)
In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 19 September 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 18 September 2007. | [
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COMMISSION REGULATION (EC) No 1687/2004
of 28 September 2004
authorising transfers between the quantitative limits of textiles and clothing products originating in the Republic of India
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 3030/93 of 12 October 1993 on common rules for imports of certain textile products from third countries (1), and in particular Article 7 thereof,
Whereas:
(1)
The Memorandum of Understanding between the European Community and the Republic of India on arrangements in the area of market access for textile products, initialled on 31 December 1994 (2) provides that favourable consideration should be given to certain requests for so-called ‘exceptional flexibility’ by India.
(2)
The Republic of India has made a request for transfers between categories on 8 June 2004.
(3)
The transfers requested by the Republic of India fall within the limits of the flexibility provisions referred to in Article 7 and set out in Annex VIII, column 9 to Regulation (EEC) No 3030/93.
(4)
It is appropriate to grant the request.
(5)
It is desirable for this Regulation to enter into force the day after its publication in order to allow operators to benefit from it as soon as possible.
(6)
The measures provided for in this Regulation are in accordance with the opinion of the Textile Committee provided for in Article 17 of Regulation (EEC) No 3030/93,
HAS ADOPTED THIS REGULATION:
Article 1
Transfers between the quantitative limits for textile goods originating in the Republic of India are authorised for the quota year 2004 in accordance with the Annex.
Article 2
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 28 September 2004. | [
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Commission Regulation (EC) No 569/2004
of 26 March 2004
fixing the export refunds on cereals and on wheat or rye flour, groats and meal
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 1766/92 of 30 June 1992 on the common organisation of the market in cereals(1), and in particular Article 13(2) thereof,
Whereas:
(1) Article 13 of Regulation (EEC) No 1766/92 provides that the difference between quotations or prices on the world market for the products listed in Article 1 of that Regulation and prices for those products in the Community may be covered by an export refund.
(2) The refunds must be fixed taking into account the factors referred to in Article 1 of Commission Regulation (EC) No 1501/95 of 29 June 1995 laying down certain detailed rules under Council Regulation (EEC) No 1766/92 on the granting of export refunds on cereals and the measures to be taken in the event of disturbance on the market for cereals(2).
(3) As far as wheat and rye flour, groats and meal are concerned, when the refund on these products is being calculated, account must be taken of the quantities of cereals required for their manufacture. These quantities were fixed in Regulation (EC) No 1501/95.
(4) The world market situation or the specific requirements of certain markets may make it necessary to vary the refund for certain products according to destination.
(5) The refund must be fixed once a month. It may be altered in the intervening period.
(6) It follows from applying the detailed rules set out above to the present situation on the market in cereals, and in particular to quotations or prices for these products within the Community and on the world market, that the refunds should be as set out in the Annex hereto.
(7) The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
The export refunds on the products listed in Article 1(a), (b) and (c) of Regulation (EEC) No 1766/92, excluding malt, exported in the natural state, shall be as set out in the Annex hereto.
Article 2
This Regulation shall enter into force on 1 April 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 26 March 2004. | [
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COUNCIL DECISION
of 21 December 1989
concerning the conclusion of an Agreement between the European Economic Community and the Republic of Austria on trade electronic data interchange systems
(89/689/EEC)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community, and in particular Article 235 thereof,
Having regard to the proposal from the Commission (1),
Having regard to the opinion of the European Parliament (2),
Having regard to the opinion of the Economic and Social Committee (3),
Whereas by Decision 87/499/EEC (4) the Council adopted a communications network Community programme on trade electronic data interchange systems (Tedis);
Whereas by Decision 89/241/EEC (5) the Council amended the said Decision in order to enable firms in non-member countries with which the Community has concluded agreements associating those countries with the Tedis programme to take part in that programme;
Whereas, by that Decision 89/241/EEC, the Council also authorized the Commission to negotiate such agreements with the members of the European Free Trade Association;
Whereas the Agreement between the European Economic Community and the Republic of Austria on trade electronic data interchange systems should there be approved,
HAS DECIDED AS FOLLOWS:
Article 1
The Agreement between the European Economic Community and the Republic of Austria on trade electronic data interchange systems is hereby approved on behalf of the Community.
The text of the Agreement is attached to this Decision.
Article 2
The President of the Council shall give, on behalf of the Community, the notification provided for in Article 8 of the Agreement.
Done at Brussels, 21 December 1989. | [
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*****
COUNCIL REGULATION (EEC) No 1137/88
of 29 March 1988
amending Regulation (EEC) No 797/85 on improving the efficiency of agricultural structures
THE COUNCIL OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community and in particular Article 43 thereof,
Having regard to the proposal from the Commission,
Having regard to the opinion of the European Parliament (1),
Whereas the problems which led to the laying down, in Article 2 (1) (d) of Regulation (EEC) No 797/85 (2) as last amended by Regulation (EEC) No 1094/88 (3), of a temporary waiver, as regards requirements concerning accounts, have still not been solved; whereas the possibility of extending that waiver should be maintained;
Whereas, following the joint declaration made by the European Parliament, the Council and the Commission on 15 June 1987 as regards policy on agricultural structures recognizing the importance of family structures in agriculture, the Member States should be authorized to concentrate application of certain measures on family holdings;
Whereas Article 3 (4) of Regulation (EEC) No 797/85 provides for a review before 1 January 1988 of the specific conditions governing the granting of aid to investments in pig production; whereas the objectives of the reform of the common agricultural policy require limitation of aid to investments the purpose of which is to increase such production;
Whereas the situation on the Member States' capital markets, in particular as regards interest rates charged, has not changed since early 1985 and therefore still justifies an increase in investment aid in the Member States referred to in Article 4 (2) of Regulation (EEC) No 797/85,
HAS ADOPTED THIS REGULATION:
Article 1
Regulation (EEC) No 797/85 is hereby amended as follows:
1. The second subparagraph of Article 2 (1) (d) shall be replaced by the following:
'However, in the less-favoured areas determined in accordance with Articles 2 and 3 of Directive 75/268/EEC, the Kingdom of Spain, the Hellenic Republic and the Italian Republic, as regards the Mezzogiorno including the islands, and the Portuguese Republic, as regards its entire territory, shall be authorized to accept improvement plans submitted during the first four years of the duration of this measure and, in the case of Spain and Portugal, submitted during the first three years following the entry into force of the provisions implementing, in these two Member States, the measures provided for in Title I, by holdings which do not satisfy the condition laid down in this point, provided that the volume of work on the holding does not require more than the equivalent of one man-work unit (MWU) and that projected investments do not exceed 25 000 ECU.'
2. The following subparagraph shall be added to Article 2 (2):
'Member States may restrict the aid system referred to in paragraph 1 to agricultural holdings which have a family character.'
3. Article 3 (4) shal be replaced by the following:
'4. Except where decisions subsequently taken pursuant to paragraph 2 provide otherwise, the aid provided for in paragraph 1 granted for investments relating to the pig production sector the effect of which is to increase production capacity shall be restricted, as regards requests submitted before 1 January 1987, to investments serving to reach 500
places for fattening pigs per holding, and as regards requests submitted between 1 January 1987 and 31 March 1988, to investments serving to reach 400 places.
As regards applications submitted after 31 March 1988 and before 1 January 1991, the number of pig places that may be achieved and be eligible for the aid referred to in paragraph 1 shall be 300 places per holding. In addition, the granting of aid shall be subject to the condition that the total number of pig places after realization of the investment does not exceed 800 places per holding.
The place required by one breeding sow shall be deemed to correspond to 6,5 fattening pig places.
The Council, acting on a proposal from the Commission by a qualified majority, shall not later than 31 December 1990 adopt the arrangements applicable to requests made as from 1 January 1991.
If the Council has not taken a decision by that date, the granting of investment aid having the effect of increasing pig production capacity shall be suspended.
Furthermore, where an improvement plan provides for investment in the pig production sector, the granting of aid in respect of such an investment shall be subject to the condition that, upon completion of the plan, at least the equivalent of 35 % of the quantity of feed consumed by pigs can be produced on the holding.'
4. The last subparagraph of Article 4 (2) shall be replaced by the following:
'However, until 31 December 1989, the value of the maximum aid referred to in the second subparagraph shall be increased by 10 % of the amount of the investments in Spain, Greece, Ireland, Italy and Portugal for investments shown in the improvement plans submitted by that date.'
Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 29 March 1988. | [
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COMMISSION REGULATION (EC) No 982/2009
of 21 October 2009
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (1),
Having regard to Commission Regulation (EC) No 1580/2007 of 21 December 2007 laying down implementing rules for Council Regulations (EC) No 2200/96, (EC) No 2201/96 and (EC) No 1182/2007 in the fruit and vegetable sector (2), and in particular Article 138(1) thereof,
Whereas:
Regulation (EC) No 1580/2007 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in Annex XV, Part A thereto,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 138 of Regulation (EC) No 1580/2007 are fixed in the Annex hereto.
Article 2
This Regulation shall enter into force on 22 October 2009.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 21 October 2009. | [
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*****
COMMISSION DECISION
of 22 May 1990
accepting undertakings given in connection with the anti-dumping proceeding concerning imports of photo albums originating in South Korea and Hong Kong, and terminating the investigation
(90/241/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 2423/88 of 11 July 1988 on protection against dumped or subsidized imports from countries not members of the European Economic Community (1) and in particular Article 10 thereof,
After consultations within the Advisory Committee as provided for in the above Regulation,
Whereas:
A. PROCEDURE
(1) In September 1988 the Commission received a complaint lodged by the Committee of European Photo Album Manufacturers (Cepam) on behalf of producers representing the majority of Community production of the photo albums concerned. The complaint contained evidence of dumping of the product concerned originating in South Korea and Hong Kong and of material injury resulting therefrom, which was considered sufficient to justify the initiation of a proceeding. The Commission accordingly announced, by a notice in the Official Journal of the European Communities (2), the initiation of an anti-dumping proceeding concerning imports into the Community of photo albums falling within CN codes ex 4820 50 00, ex 3919 90 10 and ex 3926 90 91, originating in South Korea and Hong Kong and subsequently commenced an investigation.
(2) The Commission officially so advised the exporters and importers known to be concerned, the representatives of the exporting countries and the complainants and gave the parties concerned the opportunity to make known their views in writing and to request a hearing.
All exporters concerned had the opportunity to exercise their right provided for in Article 7 (4) of Regulation (EEC) No 2423/88 and have partially done so.
(3) Some of the South Korean exporters and the only known Hong Kong exporter made their views known in writing. The Korean Stationery Industry Cooperative (a division of the Federation of Small and Medium Industries of Korea) prepared a separate submission on behalf of all photo album manufacturers in Korea. The Hong Kong Government Office in Brussels made representations on behalf of the Hong Kong exporters in writing and had an opportunity to inspect the information made available to the Commission and to comment thereon. Some importers, dealers and organizations representing Community purchasers and all complainant Community producers submitted a detailed response to the Commission's questionnaire. A considerable number of submissions from dealers and importers were made outside the time limit (Article 7 (7) (b) of Regulation (EEC) No 2423/88) but the Commission was still able to take them into account.
Some of the South Korean exporters, the Korean Stationery Industry Cooperative, the representatives of the Hong Kong Government, some importers and the complainants have requested and have been granted hearings.
(4) The Commission sought and verified all information it deemed necessary for the purpose of establishing the facts and carried out investigations at the following premises:
EEC producers:
- Walter Aulfes GmbH, Germany,
- Ludwig Fleischmann GmbH & Co KG, Germany,
- Henzo BV, The Netherlands,
- Holson GmbH, Germany,
- Karl Walter GmbH & Co KG, Germany.
These Community producers are all members of Cepam.
South Korean exporters:
- Dong In Industrial Co. Ltd, Seoul,
- Young Stationery Ltd, Seoul,
- The More Stationery Ltd, Seoul.
These exporters are members of the Korean Stationery Industry Cooperative.
Importers in the Community:
- Porst AG, Germany,
- Rheita-Krautkraemer GmbH, Germany,
- KLS Service - Non-Food-Vertriebsgesellschaft GmbH, Germany,
- Web International Ltd, United Kingdom.
The Commission requested and received detailed written submissions from the complainant Community producers, the abovementioned exporters and a number of importers, and verified the information therein to the extent considered necessary.
Because of the large number of interested parties involved, the number of hearings which had to be granted and the extension of time limits requested by all exporters, the time for completion of the investigation exceeded a 12-month period.
(5) The investigation of dumping covered the period from 1 December 1987 to 30 November 1988 (investigation period).
B. PRODUCT UNDER CONSIDERATION, LIKE PRODUCT AND COMMUNITY INDUSTRY
1. Product under consideration
(6) The product concerned is defined in the notice of initiation of the anti-dumping proceeding and is referred to as photo albums.
(7) The investigation showed that photo albums are actually supplied in three different types or categories:
- category 1: traditional photo albums,
- category 2: self-adhesive photo albums,
- category 3: flip-up albums, slip-in albums and similar types of photo albums.
(8) The first category of traditional albums are book-bound or post-bound consisting of cardboard leaves and pergamyn interleaves.
(9) The second category of self-adhesive albums are book-bound, spiral-bound or post-bound with self-adhesive leaves consisting of cardboard with a glue layer and a transparent foil. Self-adhesive filler pages for photo albums, loose or in form of book blocks, also fall into this category.
(10) The third category of flip-up, slip-in and similar albums are photo albums with different bindings (spiral binding, ring spring-clip, post binding or similar bindings). These photo albums can be identified because photos can be stuck in prefabricated transparent foil pockets. The block of this type of photo album is partly high-frequency welded and partly produced on paper basis with glued-on transparent foil. The pockets of flip albums have to be arranged in an overlapping order.
(11) The products concerned in the investigation fall within the following CN codes:
- categories 1, 2 and 3: ex 4820 50 00
- categories 2 and 3: ex 3926 90 91
- category 3: ex 3919 90 10.
The classification of categories 2 and 3 under CN codes ex 4820 50 00 or ex 3926 90 91 and ex 3919 90 10 depends on the degree of plastic material used and contained in the finished product.
2. Like product and Community industry
(12) The Commission established that the photo albums produced and sold in Hong Kong and Korea, those exported to the Community from these countries and the photo albums produced in the Community are like products within the meaning of Article 2 (12) of Regulation (EEC) No 2423/88. The great variety in design, format, materials used and binding procedures does not change the basic physical characteristics of the products under consideration to the extent that clear definitive lines exist between the various types of albums.
(13) Certain exporters contested this view of the Commission and claimed that the photo albums which are the subject of the investigation consist of three different products and have requested that a clear distinction should be made between the three categories of photo albums because they do not have the same characteristics and should therefore not be considered as like products.
The reasons advanced are that traditional albums, self-adhesive albums and flip-up or slip-in albums have different physical characteristics with regard to materials used, the binding procedure, sizes and design. It was further claimed that certain manufacturing procedures are different according to the album type and that because of relatively stable consumer preferences the interchangeability of the different album types is rather low. (14) The arguments advanced in the Commission's opinion are not sufficient to allow the segregation of the market for photo albums into three separate segments of different products which would require, as claimed by the exporters, a division of the Community industry into three different sectors.
In the Commission's opinion the photo albums under consideration are like products because irrespective of differences in materials used, in design and sizes they have closely resembling characteristics, are products of the same general category and have a unique use, i.e. to file photos on sheets or in pockets bound together in a cover which cannot be substituted by any other similar product. There is no doubt that all photo albums under consideration are interchangeable for this purpose. In this context, it is not relevant that some consumers show preferences for one and other consumers for other types of albums. Suppliers are thus obliged to offer the whole range of products in an adequate design in order to cover the whole consumer market for photo albums.
(15) In conclusion the Commission considers that the photo albums under consideration are like products which constitute a clearly identifiable market on which the dumped imports compete with each other and the Community products. The term Community industry is accordingly interpreted by the Commission as referring to the complainant companies producing and marketing the like product in the Community. The Commission has verified that the Community producers on behalf of which the complaint was lodged represent about 80 % of the total Community output of the like product.
(16) The Commission also had to consider that some of the complaining Community producers had imported substantial quantities of the dumped products themselves during the reference period and had to assess whether the definition of the Community industry concerned should be restricted only to the remainder of the Community producers who had not imported the photo albums in question themselves.
(17) The Commission's investigation revealed that the imports of photo albums by certain Community producers mainly concerned the lower-end product lines of cheap albums of the self-adhesive and flip or slip-album types which were imported into the Community from Hong Kong and Korea at dumped prices which were considerably lower than the cost of production of the Community producers in question. It was also found that the products in question have not been resold in the Community by the producers concerned at prices by which they did unduly benefit from the dumped imports. Under these circumstances the Commission is of the opinion that it was therefore not unreasonable for the Community producers concerned to import the dumped goods in order to protect themselves against dumped sales by other importers and to minimize their financial losses and maintain their market share.
(18) This situation also confirms that all types of photo albums belong to an inseparable market requiring a supplier to offer the whole product range. Therefore, the lower-end products were still manufactured in the Community although at a sharply reduced level and sold at loss-making prices because of the price depression caused by the dumped imports from South Korea and Hong Kong.
(19) The Commission is therefore of the opinion that these imports were made in order to defend the complainants' own market position against low-price offers from South Korea and Hong Kong and that there is no justification to exclude the complainants as Community producers in the meaning of Article 4 (5) of Regulation (EEC) No 2423/88.
C. NORMAL VALUE
1. South Korea
(20) The photo albums sold on the South Korean domestic market differ somewhat in size, outfit and appearance and thus did not permit a proper comparison with those exported to the EEC. The production is made to specific order and the material, size, design etc. differ considerably for each order and customer. In addition the Korean domestic market requires a more sophisticated type of album that includes special equipment, e.g. cases, sticker pads, registers, more expensive cover material etc. This kind of outfit accounts for considerable extra costs for the domestic models. Therefore, instead of making rather imprecise adjustments to the domestic sales prices, it was decided to construct normal value on the basis of cost of production of the products exported to the Community. Normal value was established for every individual model and for every export contract separately, on a transaction-by-transaction basis.
(21) The constructed normal value was determined by adding to the cost of production, on the basis of all costs, a reasonable margin of profit. The amount for selling, general and administrative expenses and profit was calculated by reference to the expenses incurred and the profit realized by the Korean producers on the domestic market (Article 2 (3) (b) (ii) of Regulation (EEC) No 2423/88).
(1) OJ No L 209, 2. 8. 1988, p. 1.
(2) OJ No C 322, 15. 12. 1988, p. 9.
(22) With regard to the profit margin to be added to the cost of production certain Korean exporters claimed that export sales of photo albums from Korea to the Community are made on an OEM (original equipment manufacture) basis and that therefore a reduced profit margin, taking account of this particular situation, should be allowed by the Commission. The following arguments were advanced:
- export sales are made to very detailed Community customer specifications such as size, capacity, colour, design, materials, labels, packing etc.,
- export sales are essentially factory sales for which no distribution or advertising costs are incurred,
- resales are made under the customer's own brand name,
- EC export sales involve high-volume transactions.
(23) The Commission formed the opinion that the factors mentioned are characteristics of the great majority of export transactions and do not sufficiently distinguish the sales of the photo albums concerned in order to qualify for the application of the OEM concept which the Commission applied in certain previous cases. These specific conditions involved the commercialization of technologically advanced electronic products with high brand profiles and which in the Commission's opinion are not at issue in respect of photo albums.
In establishing constructed normal value in these previous cases the Commission has applied a reduced OEM profit margin where export sales were made to Community companies which generally had a manufacturing activity or which had ceased such activity.
The purpose of these purchases has generally been to complete or to replace the OEM manufacturing activity of the original equipment manufacturers because these products were offered at prices below their production cost in the Community. The imported products have then been resold in the Community as own-products of the OEM under its established brand name, assuming the full responsibility of a manufacturer with regard to guarantee, warranties, after sales service, maintenance, supply of spare parts and repairs, the product thus being clearly identified as individual produce of the OEM and distinguished from all other products of the same kind.
However, with regard to the importers of the photo albums under consideration, these importers assume a mere trading function, none of them being or having been involved in a manufacturing activity of photo albums. In particular, the mere fact that the photo albums are sold in the EC under the importer's company name does not sufficiently distinguish these photo albums from all others whether originating in Korea, Hong Kong or produced in the Community. There is no indication that the importers concerned sell their own product under an established brand or trade mark which clearly differentiates their merchandise from all other photo albums in the market. The high fungibility of the products, the normal commercial activity of the importers, which does not distinguish them from any other supplier of photo albums, and the interchangeability of the products from different sources in the consumer's perception are factors which in the Commission's opinion exclude the application of the OEM concept to such imports.
(24) Consequently, the Commission takes the view that the export sales from South Korea to the Community are not sales made on an OEM basis and that there is no justification to allow in any way for differences in cost or profit in establishing normal value.
2. Hong Kong
(25) In order to establish normal value for Hong Kong, the only Hong Kong exporter known to the Commission was contacted. The response to the Commission's questionnaire was incomplete and did not permit the establishment of normal value either on the basis of sales of the like product on the domestic market or on the basis of all costs. The exporter also refused on-the-spot verification and completion of the information submitted. No other Hong Kong exporters reacted to the Commission's publication of the initiation of the anti-dumping proceeding in the Official Journal or made their views known in writing. Therefore, as no sales could be established on the domestic market, the Commission decided to use best available evidence and construct the normal value in accordance with Article 2 (3) (b) and Article 7 (7) (b) of Regulation (EEC) No 2423/88. For this purpose the Commission had to rely partially on information submitted by the complainants, which was however adjusted and completed by information which was obtained during the course of the investigation.
D. EXPORT PRICES
(26) The Korean export prices for every export model and transaction to independent Community customers were determined on the basis of the prices actually paid or payable. (27) The only Hong Kong exporter known had submitted a list of his export prices to the Community. The Commission was prepared to use this information but as on-the-spot verification was not made possible by the exporter, the Commission requested and obtained additional information from Community importers. The information obtained from these importers was used in particular to cross-check the invoiced export prices (puchase prices of the importer) with adjustments for freight, insurance and other transport costs as well as for payment terms.
On this basis, export prices were established for representative export models and transactions to independent Community customers.
E. COMPARISON
(28) Normal values and export prices of the Korean exporters were adjusted to net ex-works level in order to take account of conditions and terms of sale and were compared on a transaction-by-transaction basis.
Comparing normal value and export prices the Commission granted allowances which had been requested for differences in directly related selling expenses such as transport, insurance, handling and ancillary costs and for cost differences resulting from design and packing of the albums concerned and varying credit terms.
(29) For the Hong Kong exporter the normal values and export prices were compared ex-works at the same level of trade. The Commission took account, when circumstances permitted and where sufficient evidence was available, of differences affecting price comparability, including transport and insurance costs and payment schedules.
F. MARGINS
(30) This comparison revealed for South Korea that the prices for most export transactions were below normal value. The dumping amounts (difference between normal value and export price) were aggregated for all export transactions and for all photo album models. The total weighted average dumping margins expressed as a percentage of the exporter's 'cif Community border' export price, are outlined hereunder by exporters:
- Young Stationery Ltd: 9,3 %
- The More Stationery Ltd: 16,7 %
- Dong In Industrial Co. Ltd: 10,2 % .
(31) The corresponding dumping margin established for the Hong Kong exporter is as follows:
- Climax Paper Converters Ltd: 24,8 %.
G. INJURY
(32) The volume of imports from South Korea increased from 11 947 tonnes in 1985 to 18 716 tonnes in 1988 and from Hong Kong from 1 207 tonnes in 1985 to 3 490 tonnes in 1988.
Cumulated imports from South Korea and Hong Kong increased from 13 154 tonnes in 1985 to 22 206 tonnes in 1988 corresponding to an increase of 69 % over that period.
The Hong Kong exporter claimed that the impact of its exports to the Community should be examined separately and that because of their low respective volume in the Community market, they did not cause material injury.
(33) In considering whether cumulation was appropriate, the Commission took account of the comparability of the products imported in terms of physical characteristics, import volumes, the increase in those volumes by comparison with a reference period, the low price level of the products exported by all the exporters in question and the extent to which each imported product competed in the Community with the like product of the Community industry. On the basis of its analysis, the Commission believed that the dumped imports from Hong Kong in question could be considered to contribute to the material injury caused to the Community industry, and that those imports took place under such conditions that if the Commission were to treat one exporter separately, it would be discriminating against the others. The Commission therefore concluded that, in order to establish the level of injury caused to the Community industry, it was appropriate to consider the overall effect of all dumped imports from both South Korea and Hong Kong.
(34) The corresponding market shares increased from 49,7 % in 1985 to 58,2 % in 1988 for South Korea and from 5 % to 10,8 % for Hong Kong in the same period. The cumulated market shares of the imports under consideration increased from 54,7 % in 1985 to 69 % in 1988. (35) The Commission established price undercutting by comparing the Korean export prices of the albums with the corresponding albums of the Community producers. The comparison was carried out at the same level of trade (cif Community border, customs cleared) by using weighted average prices for all photo albums of Korean and European production.
The price undercutting margins established for the three Korean companies are:
- Young Stationery Ltd: 47 %
- The More Stationery Ltd: 13,2 %
- Dong In Industrial Co. Ltd: 68 %.
(36) For exports from Hong Kong the calculation was done on the basis of selected export models and transactions that could be established during the investigation period. As a result, the most representative sales prices of photo albums of Hong Kong (cif Community border, customs cleared) and European production (ex-works) were compared. The weighted average price undercutting margin thus established amounts to 30,9 %.
(37) As far as the situation of the Community industry is concerned, the Commission found a decrease in market share of the main EEC producers from 26,4 % to 21,1 % during the period 1985 to 1988. In the same period the corresponding combined market shares of Korean and Hong Kong exporters increased from 54,7 % to 69 %.
(38) The low price level of the products under consideration has significantly jeopardized the recovery of Community production. A moderate increase in Community production of 6,8 % between 1985 and 1988 is to be measured against a growth in Community consumption of 33,9 % over the same period. As a result at least nine Community producers in Belgium, France and the United Kingdom went bankrupt or had to abandon the producton of photo albums during the last few years. The consequent impact on the remaining Community producers was a decline in market share, increasing financial losses or a reduction in profits.
(39) Since the photo album market is a price sensitive market, the low prices at which the photo albums of Korean and Hong Kong production were sold in the Community, undercutting Community producers, combined with a substantial increase in market share, caused clearly the price depression on the Community photo album market. Community producers were forced either to make sales at a loss or to reduce their sales.
(40) The Commission has also considered whether injury might have been caused by factors other than the dumped imports. It was found that imports from other third countries were steadily decreasing in the period 1985 to 1988 as opposed to the increasing imports from South Korea and Hong Kong.
Besides the decrease in volume and market share, it was also found that these imports were made at considerably higher prices than in the case of South Korea and Hong Kong and that there was no indication of these imports being dumped.
(41) The increased level of dumped imports and in particular the low prices which undercut the prices of Community producers contributed significantly to the sharp decrease in sales of Community producers and their considerable loss of market share. The necessity to align their prices also caused heavy financial losses to Community producers. The Commission therefore considers that the dumped imports of photo albums from South Korea and Hong Kong taken in isolation are causing material injury to the Community industry.
H. COMMUNITY INTEREST
(42) In assessing whether it is in the interest of the Community to take measures against dumped imports, the Commission considers that since a substantial number of producers in Belgium, France and the United Kingdom have ceased to exist and the profit situation of the remaining producers is deteriorating, the existence of this industry is at risk. The photo album industry, with a total turnover of ECU 30 million in 1988, essentially consists of small and medium-sized enterprises largely situated in structurally weak areas of the Community with overproportionate unemployment. Important investments have been made in the last few years which are jeopardized by the low-priced dumped imports from South Korea and Hong Kong. In the case of disappearance of the photo album industry the upstream industry, i.e. suppliers of paper, board, PVC foils etc., would also be affected and would suffer a consequent decrease in demand. (43) Importers, dealers and associations of department stores have forwarded their objections to any protective measures against imports from South Korea and Hong Kong. They state that, if anti-dumping measures were taken, consumer prices would necessarily have to be increased to the detriment of both the importers and the final customers. Furthermore, they express the view that the remaining Community producers would not be capable of meeting the increased demand as a result of the imposition of protective measures.
The arguments forwarded by the importers have been considered by the Commission insofar as certain photo albums of categories 2 and 3 are concerned. An analysis of the current situation reveals that the market supply by the Community industry of cheap non-book-bound photo albums of both categories 2 and 3 is insufficient and that therefore a shortage in overall supply would have to be expected if protective measures were taken with respect to these products.
The Commission is of the opinion that, in the given circumstances, on balance, the consumer interest takes precedence over the interest of the Community industry and has therefore decided to limit protective measures to book-bound albums of category 1 and those albums of category 2 which are book-bound.
(44) In conclusion it is considered that it is in the interest of the Community to take anti-dumping measures being sufficient to eliminate the injury caused by the dumped imports. For the reasons outlined above these measures are limited to book-bound photo albums of categories 1 and 2 and sheets for the respective photo albums.
I. UNDERTAKINGS
(45) Having regard to the injury caused, the Commission intended to impose provisional duties at a rate adequate to remove the injury caused but not exceeding the dumping margins established. A rate equivalent to the price undercuttings found for each exporting country was considered as sufficient to remove the injury caused by imports of photo albums originating in South Korea and Hong Kong. Indeed, the removal of the substantial price undercutting should allow the Community industry also to increase its prices, thus to improve considerably its financial situation, to remain in the market or even increase its production and overall market share.
Having been informed of the essential facts and considerations on the basis of which it was intended to take protective measures, all the South Korean and Hong Kong exporters concerned offered price undertakings concerning the exports of book-bound traditional and self-adhesive photo albums of category 1 and category 2 falling under CN code ex 4820 50 00.
The Commission regards these undertakings as acceptable, considering that the effect of these undertakings will be to increase the prices of the products concerned to an extent sufficient to eliminate the margins of dumping. It appears that correct operation of the undertakings can be effectively monitored in particular in view of the participation of the Korean Stationery Industry Cooperative.
The Advisory Committee has been consulted on this course of action and has raised no objections.
Moreover the Commission notes that in case of violation of these price undertakings it can impose provisional duties according to Article 10 (6) of Regulation (EEC) No 2423/88 and the Council subsequent definitive duties based on the facts established in the present investigation and without carrying out new investigations concerning dumping and injury resulting therefrom,
HAS DECIDED AS FOLLOWS:
Article 1
The undertakings offered by:
1. Chin Sung Ind Co. Ltd
2. Eun Jin Industrial Co. Ltd
3. Korea Enterprise Co. Ltd
4. Young Stationery Ltd
5. Chung Woo Ind Co. Ltd
6. The More Stationery Ltd
7. Hankook Trading Co. Ltd
8. Dongin Ind Co. Ltd
9. Daeho Industries Corporation
10. Hansang Industrial Co. Ltd
11. KMB Industries Corporation
12. Samwang Ind Co. Ltd
13. Woomi Ind Co. Ltd
14. Donam Ind Co. Ltd
15. Shinia Ind Co.
16. Young Sung Ltd
17. Raf Korea Ind Co. Ltd
18. Eunsung Ind Co.
19. Samjin Industrial Co. Ltd
20. Dae Myung Ind Co.
21. Little Prince Gift Co.
22. Shin Song Co.
23. Dae Sung Corporation
24. Sevenstar Industrial Co.
25. Daesin Ind Co.
26. Samwoo Trading Corporation
27. Sungshim Industrial Co. Ltd
28. Korea Trading Co. Ltd 29. Daewoo Corp.
30. Sambang Trading Co. Ltd
31. Yuhan Incorporated
32. Seyang Ploymer Co. Ltd
33. C & G Corporation
34. Saeron Plastics Co. Ltd
all in South Korea,
and:
Climax Paper Converters Ltd, Hong Kong,
in connection with the anti-dumping proceeding concerning imports of photo albums falling under CN code ex 4820 50 00 and originating in South Korea and Hong Kong are hereby accepted.
Article 2
The investigation in connection with the anti-dumping proceeding concerning imports of photo albums originating in South Korea and Hong Kong is hereby terminated.
Done at Brussels, 22 May 1990. | [
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COMMISSION DECISION
of 21 December 1984
concerning the list of chemical substances notified pursuant to Council Directive 67/548/EEC on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances
(85/71/EEC)
THE COMMISSION OF THE EUROPEAN
COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (1), as last amended by Directive 79/831/EEC (2), and in particular Article 13 thereof,
Whereas Article 13 (2) of Directive 67/548/EEC provides that the Commission shall keep a list of substances notified pursuant to the Directive;
Whereas Article 13 (3) of Directive 67/548/EEC providing that the form of the list and the information contained in it are to be decided by the procedure set out in Article 21;
Whereas the list should be published in accordance with the objectives of Directive 67/548/EEC, namely the protection of man and the environment against risks which could arise from the placing on the market of new substances;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Committee on the Adaptation to Technical Progress of the Directives on the Removal of Technical Barriers to Trade in the Sector of Dangerous Substances and Preparations,
HAS DECIDED AS FOLLOWS:
Article 1
The list of chemical substances to be kept by the Commission pursuant to Article 13 (2) of Directive 67/548/EEC, hereinafter referred to as 'the list', shall be drawn up in accordance with the provisions set out in the Annex.
Article 2
The list of these chemical substances notified pursuant to Article 6 of Directive 67/548/EEC before 1 July of the year of the publication of the Einecs Inventory shall be published in the Official Journal of the European Communities not later than 31 December of the same year. Supplements to the list shall be published in the Official Journal of the European Communities not later than 31 December of each year thereafter, covering the period 1 July of the previous year to 30 June of the year of publication.
Done at Brussels, 21 December 1984. | [
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COMMISSION REGULATION (EC) No 202/2007
of 27 February 2007
establishing the standard import values for determining the entry price of certain fruit and vegetables
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Commission Regulation (EC) No 3223/94 of 21 December 1994 on detailed rules for the application of the import arrangements for fruit and vegetables (1), and in particular Article 4(1) thereof,
Whereas:
(1)
Regulation (EC) No 3223/94 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.
(2)
In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,
HAS ADOPTED THIS REGULATION:
Article 1
The standard import values referred to in Article 4 of Regulation (EC) No 3223/94 shall be fixed as indicated in the Annex hereto.
Article 2
This Regulation shall enter into force on 28 February 2007.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 27 February 2007. | [
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COMMISSION DECISION
of 19 December 1988
on improving the efficiency of agricultural structures in Spain pursuant to Council Regulation (EEC) No 797/85
(Only the Spanish text is authentic)
(89/115/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 797/85 of 12 March 1985 on improving the efficiency of agricultural structures (1), as last amended by Regulation (EEC) No 1137/88 (2), and in particular Article 25 thereof,
Whereas the Spanish Government has forwarded the provisions listed in the Annex hereto pursuant to Article 24 (4) of Regulation (EEC) No 797/85;
Whereas, pursuant to Article 25 (3) of Regulation (EEC) No 797/85, the Commission has to decide whether bearing in mind the abovementioned provisions forwarded, the provisions relating to the implementation of Title III of Regulation (EEC) No 797/85 in Spain continue to satisfy the conditions for a Community financial contribution to the common measure provided for in Article 1 of Regulation (EEC) No 797/85;
Whereas an assessment of the additional compensatory allowance varying for each region depending on the regional budget funds available is in line with the objective of Article 13 of Regulation (EEC) No 797/85 only if some continuity and uniformity is ensured when assessing the natural handicaps and when fixing the amounts of the allowance for the regions as a whole;
Whereas this Decision relates only to aid granted in areas on the Community list of less-favoured agricultural areas in the Annex to Council Directive 86/466/EEC (3);
Whereas, subject to the above remarks, the abovementioned provisions satisfy the conditions and the objectives of Regulation (EEC) No 797/85;
Whereas the European Agricultural Guidance and Guarantee Fund (EAGGF) Committee has been consulted on the financial aspects;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Agricultural Structure,
HAS ADOPTED THIS DECISION:
Article 1
Taking into account the provisions forwarded, the provisions adopted for the implementation of Title III of Regulation (EEC) No 797/85 in Spain continue to satisfy the conditions for a Community financial contribution to the common measure provided for in Article 1 of that Regulation in the areas on the Community list of less-favoured agricultural areas in the Annex to Directive 86/466/EEC.
Article 2
This Decision is addressed to the Kingdom of Spain.
Done at Brussels, 19 December 1988. | [
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COMMISSION REGULATION (EEC) No 1239/91 of 13 May 1991 on the supply of various consignments of cereals as food aid
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 3972/86 of 22 December 1986 on food-aid policy and food-aid management (1), as last amended by Regulation (EEC) No 1930/90 (2), and in particular Article 6 (1) (c) thereof,
Whereas Council Regulation (EEC) No 1420/87 of 21 May 1987 laying down implementing rules for Regulation (EEC) No 3972/86 on food-aid policy and food-aid management (3) lays down the list of countries and organizations eligible for food-aid operations and specifies the general criteria on the transport of food aid beyond the fob stage;
Whereas, following the taking of a number of decisions on the allocation of food aid, the Commission has allocated to certain countries and beneficiary organizations 25 000 tonnes of cereals;
Whereas it is necessary to provide for the carrying-out of this measure in accordance with the rules laid down by Commission Regulation (EEC) No 2200/87 of 8 July 1987 laying down general rules for the mobilization in the Community of products to be supplied as Community food aid (4), as amended by Regulation (EEC) No 790/91 (5);
Whereas it should be pointed out that the provisions of Commission Regulation (EEC) No 1385/89 of 22 May 1989 laying down detailed rules applicable on the purchase of cereals held by intervention agencies for the supply of community food aid (6), also apply to the products to be mobilized at intervention stocks;
Whereas it is necessary to specify the time limits and conditions of supply and the procedure to be followed to determine the resultant costs,
HAS ADOPTED THIS REGULATION: Article 1
Cereals shall be mobilized in the Community as Community food aid for supply to the recipients listed in the Annexes in accordance with Regulation (EEC) No 2200/87 and under the conditions set out in the Annexes. Supplies shall be awarded by the tendering procedure.
The successful tenderer is deemed to have noted and accepted all the general and specific conditions applicable. Any other conditions or reservation included in his tender is deemed unwritten. Article 2
This Regulation shall enter into force on the day following its publication in the Official Journal of the European Communities. This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 13 May 1991. | [
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COMMISSION REGULATION (EC) No 373/2005
of 3 March 2005
fixing the maximum reduction in the duty on maize imported in connection with the invitation to tender issued in Regulation (EC) No 2276/2004
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 1784/2003 of 29 September 2003 on the common organisation of the market in cereals (1), and in particular Article 12(1) thereof,
Whereas:
(1)
An invitation to tender for the maximum reduction in the duty on maize imported into Portugal from third countries was opened pursuant to Commission Regulation (EC) No 2276/2004 (2).
(2)
Pursuant to Article 7 of Commission Regulation (EC) No 1839/95 (3), the Commission, acting under the procedure laid down in Article 25 of Regulation (EC) No 1784/2003, may decide to fix maximum reduction in the import duty. In fixing this maximum the criteria provided for in Articles 6 and 7 of Regulation (EC) No 1839/95 must be taken into account. A contract is awarded to any tenderer whose tender is equal to or less than the maximum reduction in the duty.
(3)
The application of the abovementioned criteria to the current market situation for the cereal in question results in the maximum reduction in the import duty being fixed at the amount specified in Article 1.
(4)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Cereals,
HAS ADOPTED THIS REGULATION:
Article 1
For tenders notified from 25 February to 3 March 2005, pursuant to the invitation to tender issued in Regulation (EC) No 2276/2004, the maximum reduction in the duty on maize imported shall be 29,75 EUR/t and be valid for a total maximum quantity of 89 500 t.
Article 2
This Regulation shall enter into force on 4 March 2005.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 3 March 2005. | [
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COMMISSION DECISION
of 15 December 1986
relating to a proceeding under Article 85 of the EEC Treaty
(IV/31.458 - X/Open Group)
(Only the German, English, French, Italian and Dutch texts are authentic)
(87/69/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation No 17 of 6 February 1962, first Regulation implementing Articles 85 and 86 of the Treaty (1), as last amended by the Act of Accession of Spain and Portugal, and in particular Articles 6 and 8 thereof,
Having regard to the notification made on 19 August 1985 of a set of agreements, including the 'Agreement for X/Open Group' entered into between Compagnie des Machines Bull, France, Digital Equipment Corporation International (Europe), Switzerland, L. M. Ericsson, Sweden, International Computers Ltd, UK, Nixdorf Computer AG, Federal Republic of Germany, Ing. C. Olivetti & C. SpA, Italy, Philips International BV, The Netherlands, Sperry Corporation (now Unisys), USA, and Siemens Aktiengesellschaft, Federal Republic of Germany, and to the subsequent agreement entered into in pursuance thereof between these undertakings and AT&T Information Systems Inc., USA,
Having published a summary of the notification in accordance with Article 19 (3) of Regulation No 17 (2),
After consulting the Advisory Committee on Restrictive Practices and Dominant Positions.
Whereas:
I. THE FACTS
General background
(1) All computers require an operating system which supplies the operating instructions needed by the computer to carry out its functions. Historically, the concept of computer architecture has caused operating systems software to be tied very closely to the hardware components of the system, with the result that operating systems designed for one architecture could not normally be used on machines of a different architecture. The tasks which the users want their computers to do are carried out by application programs. Application programs are written for use with a particular operating system and can normally only function with that system. The investments of users in application programs are substantial. Users considering the acquisition of a new machine on which their present application programs cannot function do so in the knowledge that such a step may lead to a costly and time-consuming task in rewriting their existing programs or acquiring a range of new application programs. Users have, consequently, tended to be locked into the systems which they have acquired. This has meant a limitation of the choice of users and of the importance of price and quality as parameters in the competition between suppliers of hardware and software.
(2) However, in recent years, starting with small-scale systems, several extensive hardware-independent operating systems have been developed and marketed for commercial use. For software houses, the development of 'open systems' means that the market for the programs which they write for such a system is not limited to that of users of machines of a particular architecture. For users, the development of 'open systems' means that they can mix and match hardware and software from the different suppliers addressing such systems, and that they can move application programs between machines ('portability') to meet changing requirements as business grows, thereby giving protection of investments in such programs in the future.
The product
(3) Unix (1) is an operating system which was first developed in the Bell Laboratories of AT&T in about 1970. Several versions have since then been developed and offered by AT&T; the version 'Unix System V' has been offered since 1983. In 1985 AT&T published a 'System V Interface Definition' aimed at providing a standard application interface to the Unix operating system.
(4) One of the features of the design of Unix is that it offers a high degree of portability and machine independence. This means that an application program written for a Unix operating system can be moved from one machine to another of different make or capacity with little or not modification. This characteristic should enable users to change their hardware without loss of their software investment.
(5) A number of other companies have developed varieties of Unix, either under a licence from AT&T or loosely based on the principles of Unix, thereby avoiding the need to pay a royalty to AT&T. Only the versions developed by AT&T are offered under the name of Unix. Since there has been little or no standardisation either between the different versions of Unix itself or between any of the Unix-type varieties, the application software written for any one version or variety will not function with any other without modification. In total, there are today 30 to 35 different commercial versions which are used on machines with very different capacities.
The parties and the notification
(6) On 19 August 1985 several agreements were notified to which the following companies are parties:
- Compagnie des Machines Bull, France,
- International Computers Limited, UK,
- Nixdorf Computer AG, Federal Republic of Germany,
- Ing. C. Olivetti & C., SpA, Italy,
- Siemens Aktiengesellschaft, Federal Republic of Germany,
- Philips International BV, The Netherlands.
Since that date, the following companies have also become parties to the agreements:
- LM Ericsson, Sweden,
- Digital Equipment Corporation International (Europe), Switzerland,
- Sperry Corporation, USA (now Unisys).
The parties to the notified agreements are hereinafter referred to as 'the members'.
(7) The agreements notified on 19 August 1985 are the following:
- Agreement for X/Open Group, (hereinafter referred to as the 'Group Agreement'),
- Non-Disclosure Agreement,
- Arbitration Agreement.
These agreements were all made on 26 June 1985 with retroactive effect as of 30 November 1984.
(8) In pursuance of a clause in the Group Agreement, the members have also entered into an Information Exchange Agreement with AT&T Information Systems Inc., USA. This agreement became effective as of 27 September 1985. A copy was sent to the Commission on 27 November 1985.
The agreements between the members
(9) The principal objective of the X/Open Group established by the members is to take advantage of the portability of Unix and thereby to make possible an increase in the volume of applications available on the members' computer systems. This is to be
achieved by the creation of an open industry standard consisting in a stable but evolving common application environment ('CAE') for software based on AT&T's System V Interface Definition.
(10) The Group will define this software environment by selecting existing interfaces; it has no primary intent of creating new interfaces. The Group will proceed, in due time, to the standardization of selected interfaces by appropriate national and international standards organizations.
(11) Group decisions are taken by simple majority.
(12) According to the Group Agreement, the members will consider for membership particularly those applicants who are major manufacturers in the European information technology industry, with their own established expertise concerning Unix operating systems in such industry, and who are committed to the objectives of the Group.
(13) Interpreting this clause, the members have indicated that in order to ensure the ability of an applicant to dedicate resources to the Group, they expect the information technology revenue of the applicant to be in excess of US $ 500 million and that the applicant must demonstrate willingness to contribute to standards and guidelines as well as an existing commitment to established standards.
(14) The members have further indicated that the members are aware that applicants who do not fulfil the criteria may nonetheless have special attributes which will significantly contribute to achievement of Group objectives and that they should therefore be accepted as members.
(15) A member may resign at any time.
(16) The Group Agreement will remain in effect (with regard to the subsisting members of the Group) for so long as the Group remains in existence.
(17) In order to make the Group's discussions most productive the Group Agreement provides for an exchange of technical and market - but not marketing - information between the members. The members have indicated that the technical information will concern the Unix environment and that the market information will concern the European software industry and its requirements, both those of independent software vendors and those of end-users. In respect of the market information, they have further indicated that it may include analysis of the current structure of the relevant market for Unix operating systems. This analysis may cover categorization of the relevant market by reference to the type of operating system (Unix, particular type of Unix or otherwise) or the type of computer hardware. It may also cover predictions as to the future market structure derived from the collation of information from software vendors, retailers, end-user groups.
(18) Non-disclosure of confidential information is considered to be a vital part of the membership. The Non-Disclosure Agreement provides for the protection of such information from unauthorized use and disclosure.
(19) A definition of the interfaces currently identified by the Group as components of the CAE is being published in the 'X/Open Portability Guide' which is on sale to the public. An agreement concerning copyright provides for joint ownership of all present and future copyright in this manual.
(20) The Group will establish and maintain a software catalogue for appropriate software of the members and third-party suppliers, having end-users as target. The members have indicated that third-party software which is competitive to any member's own product(s) will not be excluded from the catalogue.
(21) The members are not obliged to design their products to conform with any element of the CAE and they are free to offer Unix systems with facilities additional to or enhancing the CAE elements. They are also free to select their suppliers and to carry out their own publicity in respect of products implementing the CAE or elements thereof.
(22) The Arbitration Agreement lays down the procedure to be followed in case of disputes between the members.
The agreement between the members and AT&T
(23) Under the Information Exchange Agreement, an exchange of certain information between AT&T and the members is contemplated to take place through certain defined committees. According to the agreement such information may include unpublished materials appropriate to the evaluation of AT&T's Unix System V operating system and related software; unpublished strategies for the direction of the parties' System V standardization efforts; and unpublished versions of AT&T's verification suite of programs for System V applications. The object of this exchange is to give the members the necessary forward visibility of future modifications and updates to the System V Interface Definition to enable the members to maintain compatibility between the AT&T System V Interface Definition and the X/Open Portability Guide. It is intended to amend the guide to reflect and conform to such modifications and updates. In order that the interfaces which AT&T defines can meet market requirements and be adopted by the members, they will provide AT&T with the market and technical information necessary for this purpose. No exchange of marketing information is provided for.
(24) The confidentiality of the information supplied under this agreement is ensured by a Non-Disclosure Agreement to be entered into with AT&T by each member, the terms of which are annexed to the Information Exchange Agreement.
The members' submissions
(25) In support of their request for an exemption under Article 85 (3) of the EEC Treaty the members have submitted that the establishment of a common application environment for software to run on Unix operating systems will be an important development in the support of open standards generally since the elements of the CAE will be defined by reference to international standards, whether official or de facto. They further argue that their definition and adoption of aspects of Unix operating systems presents to independent software vendors a large and (from a technical viewpoint) cohesive potential market providing the attractions of scale economies necessary to encourage such vendors to design their products so as to conform to such environment. The consumers will therefore benefit because the range of software available will be significantly greater and less restricted by the design of the computer system itself. In the opinion of the members, the promotion of a stable base for application software investment will encourage new investment, development and competition in the information technology market. As the elements of the CAE to be endorsed or adopted by the Group will only be fundamental or low-level elements, the members can build upon them when designing their own competitive products. The members also claim that the agreements mean an increase in their ability to compete with other major information technology companies and that this benefit will be extended to non-members since the elements of the CAE defined and endorsed by the Group will be published and available to all applicants.
Observations from third parties
(26) Following the publication of the summary of the notification in the Official Journal of the European Communities, the Institut der Anwaltschaft fuer Bueroorganisation und Buerotechnik GmbH, Federal Republic of Germany, has informed the Commission that it supports the application made by the members of the X/Open Group. The company is a subsidiary of the Deutsche Anwaltverein and has been established by this association of German lawyers with the purpose, inter alia, of advising on the use of modern technology by law firms. In its submission the company stresses that, seen from the users' side of the market, where German lawyers are involved only cooperation between the manufacturers as set out in the notification can satisfy the need of users for portability.
(27) No other observations from third parties have been received.
II. LEGAL ASSESSMENT
A. Article 85 (1)
(28) Article 85 (1) prohibits as incompatible with the common market all agreements between undertakings which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the common market.
Agreements between undertakings
(29) All the above agreements (cf. points 7 and 8) are agreements in the sense of Article 85 (1) and all parties to these agreements (cf. points 6 and 8) are undertakings in the sense of that Article.
Distortion of competition
(30) It is the objective of the members of the X/Open Group to establish a standard interface to a particular version of Unix. There is no obligation on the members to design their computers so that they can function with the version of Unix in question, and they are not likely to design all their products for use with this operating system. This is because, inter alia, to do so would oblige users with substantial investments in application software for use with a proprietary operating system of one of the members to change their computer systems. The members are, however, likely to put a considerable effort into the design and development of computers on which application programs implementing the CAE can function and to design such software themselves.
(1) OJ No 13, 21. 2. 1962, p. 204/62.
(2) OJ No C 250, 7. 10. 1986, p. 2.
(1) Unix is a trademark of AT&T Bell Laboratories.
(31) The members are all companies of a considerable size in the computer industry and they are all established or active throughout the Community. It is true that they have varying strength in the markets for different categories of computers and that their market positions vary from Member State to Member State. However, together they represent a substantial opportunity for software houses offering their products for use in the common market because application programs which implement the CAE can run on a wide range of machines offered by the members. Software houses should therefore be very interested in designing application programs which implement the group's definitions. This, in turn, may also make other hardware manufacturers interested in implementing them.
(32) The definitions which the group adopts are made publicly available. In this respect the definitions constitute an open industry standard. However, non-members as opposed to members cannot influence the results of the work of the group and do not get the know-how and technical understanding relating to these results which the members are likely to acquire. Moreover, non-members cannot implement the standard before it has been made publicly available whereas the members are in a position prior to implement the interfaces which the Group defines because of earlier knowledge of the final definitions and, possibly, of the direction in which the work is going. In an industry where lead time can be a factor of considerable importance, membership of the group may thus confer an appreciable competitive advantage on the members vis-à-vis their hardware and software competitors. Considering the wider importance which is likely to be attached to the standard, this advantage in lead time directly affects the market entry possibilities of non-members. The advantage in question is different in nature from the competitive advantage which the participants in a research and development project naturally hope to get over their competitors by offering a new product on the market; they hope that their new product will result in a demand from users but their competitors are not prevented from developing a competing product whereas in the present case non-members wanting to implement the standard cannot do so before the standard becomes publicly available and, therefore, are placed in a situation of dependence as to the members' definitions and the publication thereof.
(33) If the Group was open to any company willing to commit itself to the objectives of the Group no such company would be prevented from competing with the members of the Group on an equal basis.
(34) According to the Group Agreement, the members decide upon applications for membership. Applications from major manufacturers in the European information technology industry with Unix expertise and a commitment to the objectives of the Group will particularly be considered (cf. points 11 and 12). It appears that competing companies with a commitment to the objectives of the Group but which are not 'major manufacturers' with a revenue from information technology in excess of US $ 500 million (cf. point 13) are likely to be excluded from membership. Also companies fulfilling the criteria may, however, be excluded from membership as a result of the fact that a majority approval is required (cf. point 11). The members, consequently, have available to them a power to exclude applicants who fulfil the stipulated criteria for membership. In addition, since the Group 'particularly' will consider companies fulfilling the said conditions for membership, it also appears that companies not fullfilling the criteria but which 'have special attributes which will significantly contribute to achievement of Group objectives' (cf. point 14), may nevertheless be admitted to the Group. Apart from excluding competing companies from membership the conditions for membership also leave the way open for possible discriminatory treatment of applications.
(35) In the circumstances of the case, an appreciable distortion of competition within the meaning of Article 85 (1) may result from future decisions of the Group on interfaces in combination with decisions on admission of new members to the Group.
(36) The exchange of information between the members (cf. point 17) and between the members and AT&T (cf. point 23) concerns technical information with regard to the Unix environment and market information in respect of the requirements of users. The particular aim of the Group, that is, to create an open industry standard, cannot be achieved without an exchange of technical information between the members and with AT&T, and this technical information cannot be viewed and assessed by the parties in isolation from the structure and the requirements of the market. It is therefore natural that an exchange of such information is provided for.
(37) The members are competitors in the supply of machines on which application programs implementing the CAE can function. They are also competitors of AT&T, although programs implementing the CAE may not function with the version of Unix used by AT&T without certain modifications. However, neither the Group Agreement nor the agreement between the members and AT&T provide for any exchange of information with respect to prices, customers, market positions, production plans or other sensitive market information concerning the products of the parties. The Group Agreement only provides for an exchange of information necessary for the members to establish the CAE. As to the agreement with AT&T, it only provides for an exchange of information necessary to give the members the necessary forward visibility of future modifications and updates to the System V Interface Definition to enable them to maintain compatibility between the AT&T System V Interface Definition and the X/Open Portability Guide.
(38) The exchange of information does not restrict the parties in their freedom to determine their market behaviour independently. In the context of the present case, there is no reason to assume that the exchange of information will go further than provided in the agreements nor that it will result in concerted behaviour by the parties. As far as the exchange of market information in particular is concerned it may be noted that, in the absence of more far-reaching cooperation between the parties, joint market research to collect information and ascertain facts and market conditions does not in itself affect competition. Neither is competition between the members affected by the joint establishment of structural analyses. Insofar as the members design their products to conform to the CAE, an exchange of information of the kind provided for may actually help increase competition between the members and between the members and AT&T. In the absence of any such exchange of information the users might not be released from their dependence on a single supplier. On the basis of the information at hand it may therefore be concluded that the clauses concerning the exchange of information do not have the object or effect of restricting competition in the sense of Article 85 (1).
(39) The Non-Disclosure Agreement is just a natural legal safeguard and the Arbitration Agreement only lays down the procedure to be followed in case of conflict. Neither of these agreements have the object or effect of restricting competition in the sense of Article 85 (1).
Trade between Member States
(40) The members intend to market the products which implement the Group definitions in all Member States of the European Community. The Group Agreement can therefore directly influence the flow of goods manufactured by the members and indirectly the flow of goods manufactured by non-members and competing with the goods of the members. Trade between Member States may thus be affected to an appreciable extent.
Conclusion
(41) Consequently, the Group Agreement fulfils the conditions in Article 85 (1) of the EEC Treaty as it relates to the criteria for membership and the requirement of majority decisions concerning admission of new members.
B. Article 85 (3)
Overall balance of advantages and disadvantages
(42) In the present case the Commission considers that the advantages involved in the creation of an open industry standard (in particular the intended creation of a wider availability of software and greater flexibility offered to users to change between hardware and software from different sources) easily outweigh the distortions of competition entailed in the rules governing membership which are indispensable to the attainment of the objectives of the Group Agreement. In fact, the competitive advantages conferred on members by their ability to restrict access to the Group and the distortions of competition this entails, are reduced by the Group's professed aim of making available as widely and quickly as possible the results of the cooperation. This same aim also increases the objective advantages the cooperation will promote. The Commission considers that the willingness of the Group to make available the results as quickly as possible is an essential element in its decision to grant an exemption.
The detailed reasons for the conclusion that Article 85 (3) is applicable are set out below.
Promotion of technical progress
(43) The Group Agreement contributes to promoting technical progress by establishing a common application envrionment for software to run on Unix operating systems. As a result of this, open industry standard application programs may be developed by independent software houses, and possibly by the members, which might not otherwise have been developed because, in the absence of the agreement, the markets to be addressed would not have offered sufficient commercial prospects to make it worthwhile to begin the design work. It is the professed aim of the Group to make available as widely and quickly as possible the results of the cooperation. Consequently, hardware manufacturers and software houses which are not members will have available the information necessary to permit them to produce compatible products with a minimum of delay.
Consumer's benefit
(44) As a result of the agreement consumers are likely to be offered a wider choice of application programs doing either the same job or doing jobs for which no program, in the absence of the agreement, would have been available. The agreement means, moreover, that the programs which will be developed will be considerably less restricted by the architecture of the computers. The main investment by users being in software, users are generally not willing to acquire a new machine on which their existing software cannot run. This has tended to make users dependent upon the manufacturers of their systems. As the Group is defining a common application environment, the Group Agreement means, therefore, that users will obtain greater scope for mixing hardware and software from different suppliers and replacing their hardware without having also to replace their software. This represents a major advantage for users compared with the present situation (cf. point 26).
Indispensability
(45) The aims of the Group could not be achieved if any company willing to commit itself to the Group objectives had a right to become a member. This would create practical and logistical difficulties for the management of the work and possibly prevent appropriate proposals being passed. The way in which access to the Group is limited is indispensable to the attainment of the positive objectives of the Group. According to the Group Agreement, it is required that the members be major manufacturers in the European information technology industry with Unix experience. Only such companies can normally be expected to be able to provide resources of all kinds appropriate to the support of the Group's activities. It is, moreover, required that new members be approved by a majority vote. This enables a majority of the members to prevent admission of companies which might have an adverse effect on the cooperation and the achievement of the objectives of the Group. The members are the best to ascertain and weigh the advantages and disadvantages of admitting a new member for the efficiency of the work of the Group. The practical difficulties of bringing together representatives of the members with authority to commit their companies without endless discussions increase considerably with the number of members. The requirement of a majority vote also gives the members a further possibility of limiting the number of members to a manageable size. The fact that the members are in a position to admit applicants who do not fulfil the general criteria means, on the other hand, that it is possible to admit companies which are not major manufacturers but which may be able to make a substantial contribution to the work of the Group. Because qualitative as well as quantitative judgements may be called for in order to ensure that the work of the Group will not be hindered by new members, some discretionary power of admission is necessary.
Competition not eliminated
(46) The members will offer the products which they develop and which will implement the Group's definitions in competition with each other and in competition with similar products which are developed and offered by third parties. The Group Agreement does not, therefore, afford the possibility of eliminating competition in respect of a substantial part of such products.
Conclusion
(47) All conditions for the application of Article 85 (3) are thus fulfilled.
C. Articles 6 and 8 of Regulation No 17
(48) Whenever the Commission takes a decision pursuant to Article 85 (3) of the Treaty it shall, pursuant to Article 6 (1) of Regulation No 17, specify therein the date from which the decision shall take effect. Such date shall not be earlier than the date of notification.
(49) Pursuant to Article 8 (1) of Regulation No 17 a decision in application of Article 85 (3) of the Treaty shall be issued for a specified period and conditions and obligations may be attached thereto.
(50) The Group Agreement was notified on 19 August 1985. It was entered into with retroactive effect as of 30 November 1984 for an indefinite period (cf. point 16). (51) The period until 30 November 1990 should give the members sufficient time to decide upon the definitions to be adopted. Such period will, furthermore, enable the Commission to reassess the cooperation between the members and its impact on non-members within a reasonable period of time. It is therefore appropriate to grant an exemption from 19 August 1985 to 30 November 1990.
(52) Although the conditions for membership are indispensable they may be applied in an unreasonable manner. In order to ensure that the conditions for the application of Article 85 (3) are fulfilled in the above period it is, therefore, necessary that the Group submits an annual report to the Commission on cases where applications for membership have been refused and that it immediately informs the Commission of any changes in the membership,
HAS ADOPTED THIS DECISION:
Article 1
Pursuant to Article 85 (3) of the EEC Treaty, the provisions of Article 85 (1) are hereby declared inapplicable from 19 August 1985 to 30 November 1990 to the 'Agreement for X/Open Group' entered into by the parties referred to in Article 5, (1) to (9), hereinafter called 'the members'.
Article 2
The following obligations are attached to this Decision:
(a) The members shall ensure that the Commission is informed immediately of any changes in the membership of the X/Open Group.
(b) The members shall ensure that the Commission receives an annual report on any case where an application for membership of the X/Open Group has been refused in the period covered by the report. The first such report shall be submitted no later than 30 November 1987 and the subsequent reports no later than 30 November of the following years.
Article 3
On the basis of the facts in its possession, the Commission has no grounds for action under Article 85 (1) of the EEC Treaty in respect of the Non-Disclosure Agreement and the Arbitration Agreement entered into by the members.
Article 4
On the basis of the facts in its possession, the Commission has no grounds for action under Article 85 (1) of the EEC Treaty in respect of the Information Exchange Agreement entered into by the parties referred to in Article 5, (1) to (10).
Article 5
This Decision is addressed to:
1. Compagnie des Machines Bull,
121, avenue de Malakoff,
F-75116 Paris,
2. Digital Equipment Corporation International (Europe),
12, avenue des Morgines,
case postale 510,
CH-1213 Petit-Lancy 1, Geneva,
3. Telefonaktiebolaget L.M. Ericsson,
S-126 25 Stockholm,
4. International Computers Limited,
ICL House,
Putney,
GB-London SW15 1SW
5. Nixdorf Computer AG,
Fuerstenallee 7,
D-4790 Paderborn,
6. Ing. C. Olivetti & C., SpA,
Via G. Jervis 77,
I-10015 Ivrea,
7. Philips International BV,
PO Box 218,
Groenewoudseweg 1,
NL-5600 MD Eindhoven,
8. Siemens Aktiengesellschaft,
Wittelsbacherplatz 2,
D-8000 Muenchen 2,
9. Unisys Corporation,
Mail Station B307M,
PO Box 500,
Blue Bell,
USA-PA 19424,
10. AT&T Information Systems,
100 Southgate Parkway,
Morris Township 07960,
Morristown,
New Jersey,
USA.
Done at Brussels, 15 December 1986. | [
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COUNCIL DECISION
of 18 September 2006
on the signing and provisional application of the Agreement between the European Community and the Republic of Paraguay on certain aspects of air services
(2007/323/EC)
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Article 80(2) in conjunction with the first sentence of the first subparagraph of Article 300(2) thereof,
Having regard to the proposal from the Commission,
Whereas:
(1)
On 5 June 2003 the Council decided to authorise the Commission to open negotiations with third countries on the replacement of certain provisions in existing bilateral agreements with a Community agreement.
(2)
The Commission has negotiated, on behalf of the Community, an Agreement with the Republic of Paraguay on certain aspects of air services in accordance with the mechanisms and directives in the Annex to that Decision.
(3)
Subject to its conclusion at a later date, the Agreement negotiated by the Commission should be signed and provisionally applied,
HAS DECIDED AS FOLLOWS:
Article 1
The signing of the Agreement between the European Community and the Republic of Paraguay on certain aspects of air services is hereby approved on behalf of the Community, subject to the conclusion of the said Agreement.
The text of the Agreement is attached to this Decision.
Article 2
The President of the Council is hereby authorised to designate the person(s) empowered to sign the Agreement on behalf of the Community subject to its conclusion.
Article 3
Pending its entry into force, the Agreement shall be applied provisionally from the first day of the first month following the date on which the parties have notified each other of the completion of the necessary procedures for this purpose.
Article 4
The President of the Council is hereby authorised to make the notification provided for in Article 9(2) of the Agreement.
Done at Brussels, 18 September 2006. | [
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COMMISSION DECISION of 4 April 1997 suspending the status of Ireland as regards Newcastle disease (Text with EEA relevance) (97/262/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Directive 90/539/EEC of 15 October 1990 on animal health conditions governing intra-community trade in and imports from third countries of poultry and hatching eggs (1) as last modified by the Act of Accession of Austria, Finland and Sweden, and in particular Article 12 (3) thereof,
Whereas Commission Decision 92/339/EEC of 2 June 1992 establishing the status of Ireland as regards Newcastle disease (2) fixed the status of Ireland as Newcastle disease non-vaccinating;
Whereas, however, the legislative restrictions prohibiting the systematic recourse to routine vaccination against Newcastle disease have now been removed in relation to Ireland; whereas it is therefore appropriate to suspend the status of Ireland as Newcastle disease non-vaccinating;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Veterinary Committee,
HAS ADOPTED THIS DECISION:
Article 1
The status of Ireland as Newcastle disease non-vaccinating is suspended.
Article 2
This Decision is addressed to the Member States.
Done at Brussels, 4 April 1997. | [
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Commission Decision
of 29 December 2003
providing for the initiation of an investigation pursuant to Article 27(2) of Council Regulation (EC) No 2501/2001 with respect to the violation of freedom of association in Belarus
(2004/23/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 2501/2001 of 10 December 2001 applying a scheme of generalised tariff preferences for the period from 1 January 2002 to 31 December 2004(1), as last amended by Commission Regulation (EC) No 1686/2003(2), and in particular Article 27(2) thereof,
Whereas:
(1) The Commission has received information on alleged violations of freedom of association in Belarus. The information was jointly supplied by the International Confederation of Free Trade Unions (ICFTU), the European Trade Union Confederation (ETUC) and the World Confederation of Labour (WCL).
(2) Article 26(1)(b) provides for the temporary withdrawal of tariff preferences, in respect of all or of certain products, originating in a beneficiary country for "serious and systematic violation of the freedom of association, the right to collective bargaining or the principle of non-discrimination in respect of employment and occupation, or use of child labour, as defined in the relevant ILO Conventions".
(3) The Commission has examined the submitted information pertaining to alleged violations of freedom of association in Belarus. The alleged violations relate to restrictions upon the right of workers and employers to establish organisations of their own choosing without interference by the public authorities, interference by the public authorities in trade union elections, limitation of trade union activities and repression of trade union leaders and activists, as defined in the Freedom of Association and Protection of the Right to Organise Convention No 87 and the Right to Organise and Collective Bargaining Convention No 98 of the International Labour Organisation. The Commission considers that there are sufficient grounds for an investigation.
(4) The measures provided for in this Decision are in accordance with the opinion of the Generalised Preferences Committee,
HAS DECIDED AS FOLLOWS:
Sole Article
The Commission shall initiate an investigation into alleged violations of freedom of association in Belarus.
Done at Brussels, 29 December 2003. | [
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*****
COMMISSION DECISION
of 27 November 1987
approving the adjustment to the special programme for the Region of Emilia-Romagna concerning the adaptation and modernization of the structure of production of beef and veal, sheepmeat and goatmeat pursuant to Council Regulation (EEC) No 1944/81
(Only the Italian text is authentic)
(87/576/EEC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 1944/81 of 30 June 1981 establishing a common measure for the adaptation and modernization of the structure of production of beef and veal, sheepmeat and goatmeat in Italy (1), as last amended by Regulation (EEC) No 797/85 (2), and in particular Article 2 (3) thereof,
Having regard to Commission Decision 84/395/EEC (3), on the approval of the special programme for the Region of Emilia-Romagna,
Whereas on 17 July 1987 the Italian Government notified the adjustment of the special programme for the Region of Emilia-Romagna concerning the adaptation and modernization of the structure of production of beef and veal, sheepmeat and goatmeat;
Whereas such adjustment satisfies the requirements and aims of Regulation (EEC) No 1944/81;
Whereas the conditions for the grant of investment aids for milk production must comply with Article 3 (3) of Regulation (EEC) No 797/85;
Whereas the Committee of the European Agricultural Guidance and Guarantee Fund has been consulted on the financial aspects;
Whereas the measures provided for in this Decision are in accordance with the opinion of the Standing Committee on Agricultural Structures,
HAS ADOPTED THIS DECISION:
Article 1
The adjustment to the special programme for the Region of Emilia-Romagna concerning the adaptation and modernization of the structure of production of beef and veal, sheepmeat and goatmeat, notified by the Italian Goverment on 17 July 1987 pursuant to Regulation (EEC) No 1944/81, is hereby approved.
Article 2
This Decision is addressed to the Italian Republic.
Done at Brussels, 27 November 1987. | [
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COMMISSION REGULATION (EC) No 1695/2004
of 30 September 2004
fixing the rates of the refunds applicable to eggs and egg yolks exported in the form of goods not covered by Annex I to the Treaty
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EEC) No 2771/75 of 29 October 1975 on the common organisation of the market in eggs (1), and in particular Article 8(3) thereof,
Whereas:
(1)
Article 8(1) of Regulation (EEC) No 2771/75 provides that the difference between prices in international trade for the products listed in Article 1(1) of that Regulation and prices within the Community may be covered by an export refund where these goods are exported in the form of goods listed in the Annex to that Regulation. Commission Regulation (EC) No 1520/2000 of 13 July 2000 laying down common detailed rules for the application of the system of granting export refunds on certain agricultural products exported in the form of goods not covered by Annex I to the Treaty, and the criteria for fixing the amount of such refunds (2), specifies the products for which a rate of refund should be fixed, to be applied where these products are exported in the form of goods listed in Annex I to Regulation (EEC) No 2771/75.
(2)
In accordance with Article 4(1) of Regulation (EC) No 1520/2000, the rate of the refund per 100 kilograms for each of the basic products in question must be fixed for a period of the same duration as that for which refunds are fixed for the same products exported unprocessed.
(3)
Article 11 of the Agreement on Agriculture concluded under the Uruguay Round lays down that the export refund for a product contained in goods may not exceed the refund applicable to that product when exported without further processing.
(4)
In accordance with Council Regulation (EC) No 1676/2004 of 24 September 2004 adopting autonomous and transitional measures concerning the importation of certain processed agricultural products originating in Bulgaria and the exportation of certain processed agricultural products to Bulgaria (3), with effect from 1 October 2004, processed agricultural products not listed in Annex I to the Treaty which are exported to Bulgaria are not eligible for export refunds.
(5)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Poultrymeat and Eggs,
HAS ADOPTED THIS REGULATION:
Article 1
The rates of the refunds applicable to the basic products listed in Annex A to Regulation (EC) No 1520/2000 and in Article 1(1) of Regulation (EEC) No 2771/75, exported in the form of goods listed in Annex I to Regulation (EEC) No 2771/75, are fixed as set out in the Annex to this Regulation.
Article 2
By way of derogation from Article 1 and with effect from 1 October 2004, the rates set out in the Annex shall not be applicable to goods not covered by Annex I to the Treaty when exported to Bulgaria.
Article 3
This Regulation shall enter into force on 1 October 2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 September 2004. | [
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COMMISSION REGULATION (EEC) No 2215/90
of 30 July 1990
amending Regulation (EEC) No 2793/86 laying down the codes to be used in the forms laid down in Council Regulations (EEC) No 678/85, (EEC) No 1900/85 and (EEC) No 222/77
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Economic Community,
Having regard to Council Regulation (EEC) No 679/85 of 18 February 1985 introducing a specimen declaration form to be used in trade in goods within the Community (1), as last amended by Commission Regulation (EEC) No 1062/87 (2), and in particular Article 3 thereof,
Having regard to Council Regulation (EEC) No 1900/85 of 8 July 1985 introducing Community export and import declaration forms (3), as amended by Regulation (EEC) No 1059/86 (4), and in particular Article 8 thereof,
Whereas Commission Regulation (EEC) No 2793/86 of 22 July 1986 laying down the codes to be used in the forms laid down by Council Regulation (EEC) No 678/85, (EEC) No 1900/85 and (EEC) No 222/77 (5), as last amended by Regulation (EEC) No 1159/89 (6), provides that an Incoterm code shall be entered in the first subdivision of Box 20; whereas the International Chamber of Commerce has decided to modify the Incoterms; whereas Regulation (EEC) No 2793/86 should be amended accordingly;
Whereas the measures laid down in this Regulation are in accordance with the opinion of the Committee on the Movement of Goods,
HAS ADOPTED THIS REGULATION:
Article 1
The annex to Regulation (EEC) No 2793/86 is hereby amended as follows: the table shown under the heading 'Box 20: delivery terms' shall be replaced by the following table:
1.2.3 // // // // First subdivision // Meaning // Second subdivision // // // // Incoterm code // Incoterm - ICC/ECE // Place to be specified // // // // EXW // EX WORKS // locality of works // FCA // FREE CARRIER // . . . named point // FAS // FREE ALONGSIDE SHIP // named port of shipment // FOB // FREE ON BORD // named port of shipment // CFR // COST AND FREIGHT (C & F) // named port of destination // CIF // COST, INSURANCE AND FREIGHT // named port of destination // CPT // CARRIAGE PAID TO // named point of destination // CIP // CARRIAGE, INSURANCE PAID TO // named point of destination // DAF // DELIVERED AT FRONTIER // named place of delivery at frontier // DES // DELIVERED EX SHIP // named port of destination // DEQ // DELIVERED EX QUAY // Duty paid . . . named port // DDU // DELIVERED DUTY UNPAID // named place of destination in country of importation // DDP // DELIVERED DUTY PAID // named place of delivery in country of importation // // // // XXX // DELIVERY TERMS OTHER THAN THOSE LISTED ABOVE // narrative description of No L 119, 29. 4. 1989, p. 100.
Article 2
This Regulation shall enter into force on 1 January 1991.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 30 July 1990. | [
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Subsets and Splits